Causing wrong while doing good: on the question of liability for volunteers in emergencies

ABSTRACT

Disaster response has always involved emergent activities by those immediately affected and volunteers converging on the scene. Although issues concerning responsibility and liability for volunteers in emergencies have been noted, in-depth discussions of the topic have been limited in disaster research. This article raises the following questions: What happens when people commit wrongs while trying to do good in disaster situations? How do legal and political systems balance encouraging citizens to help one another while holding people responsible for wrongdoings? By discussing the existing research literature and legal cases pertaining to the question of liability for, what we define as, volunteers, we argue that current understandings of liability are inadequate given recent calls for communities and citizens to become more disaster resilient and take on a larger role in response and preparedness work. We conclude by pointing towards three issues that ought to attract the attention of legal and social scholars in the future.

KEYWORDS:

• disaster
• liability
• responsibility
• volunteers
• good Samaritans
• resilience
• tort

Acknowledgements

The authors wish to thank Victor Christoffersen for research assistance on legal cases concerning liability in emergencies.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 See also Michael Eburn’s analysis of Good Samaritan regulation in four Australian States, defining a Good Samaritan as a person ‘acting “without expectation of payment or other reward”’ (Eburn, 2003, p. 8),

2 For an analysis of the liability of volunteer firefighters see Loh (2009).

3 In this context, an important difference between common law and civil law systems surface. Thus, the question on whether such moral duty to aid others can, or should be, made into a legal duty of rescue (and thereby an issue of legal scrutiny), is solved differently within these overall legal systems. Civil law systems seem to favour a formalised legal duty of rescue and common law systems favouring not to set out such general duty. For more on the duty to rescue see publications by Weinrib (1980), McIntyre (1994), and Tomlinson (2000).

4 These cases are often solved with rejecting the doctrine of volenti, cf. e.g. the leading English case Ogwo v. Taylor [1988] AC 431. As stated in Wagner v. International Railway Co (1921) 232 Ny Rep 176: ‘the cry of danger is the summons to relief’.

5 Justinian, Institutes, 3.13. See Owen (1995).

6 See Lord Buckley in Cope v. Sharpe [1912] 1 K.B. 496.

7 For more details of how law solves this dilemma, see Lauta (2017) or Finn (2016, pp. 100–116)

8 See for instance the case McDonald v. Massachusetts General Hospitals (Commonwealth of Massachusetts, 1876), where it was stated that

A corporation, established for the maintenance of a public charitable hospital, which has exercised due care in the selection of its agents, is not liable for injury to a patient caused by their negligence, nor for the unauthorized assumption of one of the hospital attendants to act as a surgeon.

9 See e.g. Williams (2001) and Hodge (2006).

10 See Osterlind v Hill 160 NE 301 (Supreme Judicial Court of Massachusetts, 1928).

11 See the Canadian case The Ogopogo, 2 Lloyds Rep 410 (Canadian Supreme Court, 1971). A guest at a boat party fell overboard, the host attempted to reverse the boat to pick him up but failed to position it correctly, and a second guest dived in to conduct a rescue. Both guests drowned. Though the Canadian Supreme Court held that while, as their host the defendant did owe a duty of care to his two guests, he had not been negligent in the circumstances in the way he had attempted to conduct the rescue. A duty of care there may have been but the court was reluctant to hold him to a high standard of care.