Tolley v Carr & Ors

In rescuer cases, the question is whether the rescuer took reasonable steps for their own safety in all the circumstances. The law is slow and cautious to find contributory negligence where a person imperils themselves to reduce a serious risk to others. The assessment must reflect the pressure of the moment, the rescuer’s perception of the danger, the urgency of the response and the risks being addressed. Courts should avoid fine scrutiny of instinctive decisions made in an emergency. Greater risks to others may justify greater risks being accepted by the rescuer. Exceptional bravery is not equivalent to foolhardiness. The defendants bear the burden of proving that the rescuer acted unreasonably.

The claimant suffered catastrophic injuries when attempting to move a car which had come to rest partly across a motorway lane after the first defendant lost control of it. The second defendant’s car and the third defendant’s van subsequently struck the stationary car. The defendants accepted primary liability and resolved liability issues between themselves. The sole issue at trial was whether the claimant was contributorily negligent in returning to the carriageway to move the car, and, if so, the appropriate reduction in damages.

1. Applicable approach. The issue was whether the claimant had taken reasonable steps for his own safety, having regard to all the relevant circumstances. The defendants bore the burden of proving contributory negligence.
2. The common law recognises that danger invites rescue. It imposes a duty on those creating a danger towards persons who go to the aid of those put at risk, and it is slow and cautious to find negligence in rescuers who imperil themselves. The greater the risk to others which the rescuer seeks to avert, the greater the risk to the rescuer which may be regarded as reasonable.
3. A rescuer’s conduct and subjective assessment of the danger should not be subjected to fine scrutiny in the courtroom. The pressures of the moment, the perceived urgency, and the possibility of serious harm to others are material. Rescue may reasonably address a danger created by one person where the rescuer also seeks to prevent foreseeable harm caused by others.
4. The claimant reasonably believed that the car posed a substantial and immediate risk of a further collision and possible multiple-vehicle accident. He was motivated by the protection of other road users and had checked the relevant traffic lane before returning to the car. The slowing and bunching of traffic in the other lanes reinforced his assessment that an emergency existed.
5. Even if he had failed to see an approaching vehicle, or had not checked sufficiently, the circumstances would not have established wanton or wholly unreasonable disregard for his own safety. His actions were brave and commendable rather than foolhardy. The defendants therefore failed to prove contributory negligence.

The claim for contributory negligence was dismissed. Judgment was entered for the claimant, with damages to be assessed without reduction.

Not stated in the judgment.