The Rescuer Doctrine

The rescuer doctrine was raised in Passerin v. Webb, 2018 BCSC 289 (CanLII).

This case involved a negligence case against the Defendant Webb, who was thrown off his snowmobile, causing it to be a “run-away” machine which struck the Plaintiff, Mr. Passerin, causing serious injury.

This case involves a group of friends who were snowmobiling in the Mount Renshaw area. As noted in the case law “the rider-less snowmobile travelled over a 100-foot cliff, climbed out of a 20-foot powdered ravine and raced at full throttle for 1 to 1.5 km until it struck Mr. Passerin. The snowmobile stopped as a result of colliding with Sarah Webb’s nearby machine.

The Plaintiff, Mr. Passerin had stopped his snowmobile to assist Sarah Webb, whose snowmobile was stuck in deep snow. While he was walking towards Sarah Webb, he was struck by the run-away snowmobile.

The Defendant was found fully liable for this incident, but the rescuer doctrine was raised, suggesting that Sarah Webb, who needed to be rescued by the Plaintiff, should also be found contributorily negligent.

The arguments raised under the rescuer doctrine, however, were not successful and the Defendant Webb was found 100% at fault.

The Court’s analysis is noted:

[73]         If Mr. Passerin was a rescuer of Sarah Webb, the question arises as to whether she should bear some liability for his damage. I conclude that Sarah Webb is not liable under the rescuer doctrine.

[74]         A rescuer may be entitled to be compensated for his damage resulting from attempting to render assistance to another person: Ray v. Bates, 2015 BCCA 216 at paras. 14-17.

[75]         The first inquiry is whether Sarah Webb was negligent in the operation of her snowmobile when she became stuck and signaled for Mr. Passerin’s assistance. If she was not negligent, then she was not a wrongdoer that put Mr. Passerin in peril.

[76]         Sarah Web had been snowmobiling for a number of years. Although Mr. Passerin viewed her as a beginner, she described herself as an intermediate rider. Based on her experience, I agree with her assessment that she was more than a beginner.

[77]         There is no controversy that falls are a common experience for snowmobilers and becoming stuck in the snow is also not uncommon.

[78]         Dave Webb was an experienced rider. He was behind Sarah Webb when his sled rolled down the hill. There was no evidence to indicate that he was negligent or assuming a risk riding in the same area where Sarah had become stuck. I, therefore, infer that Sarah Webb had safely traversed into that area and was not venturing into an area that was beyond her capacity.

[79]         Sarah Webb became stuck in snow – as is common in snowmobiling of this type. There was no evidence to establish that she was in an area that was beyond her skill level or that she was negligent in her riding – it was just part of a snow mobile outing; it was not anything out of the ordinary.

[80]         Sarah Webb was not a wrongdoer and, accordingly, is not liable for any part of Mr. Passerin’s damage.

The rescuer doctrine is discussed and referenced in Ray v. Bates, 2015 BCCA 216 at paras. 14-17, which is enumerated below.

The rationale for special treatment of rescuers is that where a person’s negligence puts another person (or him/herself) in peril, it is entirely foreseeable that a bystander will react by attempting to eliminate the peril. The classic statement of the doctrine is that of Cardozo J. in Wagner v. International Railway Co. (1921), 232 N.Y. Rep. 176 at 180, 133 N.E. 437 at 437-8:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer…. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

In Videan v. British Transport Commission, [1963] 2 Q.B. 650, at p. 669, Lord Denning, M.R. said:

Whoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.

These pronouncements were cited with approval by the Supreme Court of Canada in Horsley v. MacLaren, 1971 CanLII 24 (SCC), [1972] S.C.R. 441 at 444 and 467, and in Corothers v. Slobodian, 1974 CanLII 187 (SCC), [1975] 2 S.C.R. 633 at 638‑9 and 640‑41. They were also cited in Martin v. American International Assurance Life Co., 2003 SCC 16 (CanLII).

In Toy v. Argenti (1980), 17 B.C.L.R. 365 at 371-2, Esson J., as he then was, adopted statements describing the contours of the rescuer doctrine by Lord Jamieson of the Scottish Court of Sessions (Inner House) in Steel v. Glasgow Iron and Steel Company, [1944] S.C. 237 at 267:

[T]he following propositions … may be extracted …: (1) The intervention of human action does not necessarily per se break the chain of causation between the negligence and the injury sustained. (2) To entitle the sufferer to damages, such intervention must have been reasonable and such as might have been in the contemplation of the wrongdoer. (3) In determining what is reasonable in the circumstances the interests sought to be protected must be measured in comparison with the risks involved in the action taken. (4) If the action taken is reasonable, the injured person will not be debarred from recovering damages by his not having adopted the best possible course in the circumstances, or by his having made a mere error of judgment: but he will be debarred if his action is unreasonable and unwarrantable and outside the exigencies of the emergency: and (5) It is not essential that the action should have been taken on the impulse of the moment. The same result will follow if it arises from a natural response to avert danger after time for deliberation on the consequences of the risk taken.

To these I would add that, as the instinct to save human life is greater than the instinct to save property, a hazardous intervention for the former purpose is more likely to be a natural and probable consequence of a negligent act than one for the latter, and in the reasonable contemplation of the wrongdoer.


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