The notion of the ‘rescuer’ holds a particular status within tort law. Society generally values and encourages altruism, and the law of negligence has often reflected this by seeking to compensate those who are injured while coming to the aid of others. The legal principle “danger invites rescue” (Cardozo J, 1921), while from another jurisdiction, encapsulates the common law’s recognition that a person who creates a dangerous situation should foresee that others might intervene. This essay will argue that while English law provides a significant degree of protection for rescuers, particularly in relation to physical injury, this protection is not absolute and can be considered inadequate in certain areas. The law is generally favourable in establishing a duty of care and limiting defences, but the position regarding psychiatric harm demonstrates a notable restriction on the extent of this protection.
The foundation of protection for rescuers is the willingness of courts to find that a duty of care is owed to them by the person who created the danger. The courts have consistently held that a rescuer is a foreseeable claimant. The classic case of *Haynes v Harwood* [1935] 1 KB 146 established this principle. In this case, a police officer was injured while stopping runaway horses that the defendant had negligently left unattended. The Court of Appeal held that the defendant owed a duty of care to the officer, as it was foreseeable that someone would try to intervene to prevent injury to others. Greer LJ stated that it was a “natural and probable consequence” of the defendant’s negligence that someone would try to stop the horses. This established a clear precedent that the act of rescue itself does not prevent a duty of care from arising.
This principle was further consolidated and explained in *Baker v TE Hopkins & Son Ltd* [1959] 1 WLR 966. Here, a doctor went down a well to try and save two workers who were overcome by carbon monoxide fumes from a petrol-powered pump, which their employer had negligently instructed them to use in the confined space. The doctor also died from the fumes. When his estate sued the employer, the Court of Appeal held that a duty of care was owed to the doctor. The court affirmed that the defendant ought to have foreseen that if they put their employees in danger, it was likely that someone would attempt a rescue. The court viewed the rescuer not as an interfering party, but as a foreseeable victim of the defendant’s original negligence. This illustrates that the law adequately protects rescuers by readily identifying them as persons to whom a duty of care is owed, ensuring they have a basis for a claim.
Beyond the initial duty of care, the law also protects rescuers by making it difficult for defendants to use certain defences to defeat their claims. A defendant might argue that the rescuer’s own actions broke the chain of causation, constituting a *novus actus interveniens*. However, the courts are generally unwilling to accept this argument. The act of rescue is seen as a foreseeable consequence of the defendant’s wrongdoing, not an independent act that severs the chain of causation. Likewise, the defence of *volenti non fit injuria*, that the claimant voluntarily assumed the risk of injury, has been held to have very limited application to rescuers. In *Baker*, the defendants argued that the doctor had willingly accepted the risk. The court rejected this, stating that the rescuer’s actions were born of a moral and social duty, not a free and voluntary choice to accept the inherent dangers. Wilmer LJ commented that it would be a “scandal” if a rescuer was left “in the lurch” by the law. This judicial stance demonstrates a clear policy of protecting those who act altruistically, ensuring that their commendable actions do not, in most circumstances, disqualify them from compensation.
However, the protection offered to rescuers is not unlimited. While the defence of *volenti* is unlikely to succeed, the defence of contributory negligence can be applied if the rescuer’s conduct is deemed to be unreasonable. The law does not give rescuers a blank cheque to act with a complete disregard for their own safety. If a rescuer’s method of intervention is judged to be unnecessarily reckless or foolish, a court may reduce their damages to reflect their share of the responsibility for their injuries. In *Harrison v British Railways Board* [1981] 3 All ER 679, a guard on a train was injured while trying to help a passenger who was attempting to board a moving train. The guard was held to be contributorily negligent because there was a safer way he could have assisted, such as by signalling to the driver. This case demonstrates that the protection is adequate only up to the point of reasonable conduct. While the court will make allowances for the “heat of the moment”, it will not completely indemnify a rescuer who acts with what might be termed a “wanton disregard” for their own safety. This limitation seems reasonable, balancing the policy of encouraging rescue with the need for individuals to take some care for themselves.
The most significant area where the law can be criticised as providing inadequate protection is in relation to psychiatric harm, or ‘nervous shock’. The development of the law in this area has created significant difficulties for rescuers. In the earlier case of *Chadwick v British Railways Board* [1967] 1 WLR 912, a rescuer who had actively participated in the horrific aftermath of the Lewisham train crash and suffered resulting psychiatric illness was able to claim compensation. He was deemed a primary victim because he had put himself in the zone of physical danger during the rescue. However, the subsequent landmark case of *White v Chief Constable of South Yorkshire Police* [1999] 2 AC 455 significantly constrained the position. This case involved claims by police officers for psychiatric injury suffered after their involvement in the Hillsborough stadium disaster. The House of Lords held that these rescuers, who were not in physical danger themselves, could not recover damages. They were not primary victims as they were not within the zone of foreseeable physical injury, and they could not be classed as secondary victims as they lacked the requisite “close tie of love and affection” to the immediate victims.
The decision in *White* shows a clear inadequacy in the law’s protection. It creates a distinction between rescuers who are physically endangered and those who are not, even though both may be exposed to horrific scenes and suffer genuine psychiatric harm as a result. The court was concerned about opening the ‘floodgates’ to litigation and creating a distinction between police officers and ordinary bystanders. However, the result is that a rescuer’s ability to claim for psychiatric injury depends heavily on the arbitrary fact of whether they were in physical peril, rather than the nature of the trauma they endured. This arguably fails to adequately value the mental well-being of those who step forward to help in a crisis, representing a significant gap in the protection offered by English law.
In conclusion, the question of whether English law adequately protects rescuers invites a mixed response. In cases of physical injury, the law is robust. The courts readily find a duty of care, as seen in *Baker v TE Hopkins*, and largely negate powerful defences such as *volenti non fit injuria* and *novus actus interveniens*. The protection is therefore substantial and reflects a public policy in favour of encouraging rescue. The availability of contributory negligence serves as a reasonable check on this principle. However, the protection is significantly less adequate when it comes to psychiatric harm. The restrictive rules laid down in *White* mean that many rescuers, particularly professionals or those not directly in physical harm’s way, are left without a remedy for genuine psychological suffering. Therefore, while the law provides a good foundation of protection, its adequacy is seriously undermined by the complex and arguably unfair distinctions drawn in cases of psychiatric harm.
References
*Baker v TE Hopkins & Son Ltd* [1959] 1 WLR 966
Cardozo, J in *Wagner v International Railway Co* 232 NY 176 (1921)
*Chadwick v British Railways Board* [1967] 1 WLR 912
*Harrison v British Railways Board* [1981] 3 All ER 679
*Haynes v Harwood* [1935] 1 KB 146
Horsey, K. and Rackley, E. (2021) *Tort Law*. 7th edn. Oxford University Press.
*White v Chief Constable of South Yorkshire Police* [1999] 2 AC 455
