Am I Legally Obligated to Help Someone Who is in Danger — Part 1?

You’ll note in the title that we’ve used the word ‘legally’. We’ve used it deliberately and the reason is so that a clear distinction is drawn from a ‘moral obligation’ to help someone who is in danger — which I am sure that everyone will agree we all have. 

This article will explore whether we are, according to the law, legally required to help someone whose life is in danger or who is at significant risk of harm. An easier way of thinking about this is: if someone was in danger and you didn’t help them, could you be charged with a criminal offence or otherwise be punished by the law?

The story of Shelsea Schilling

What prompted us to write about this article was the story of Shelsea Schilling. In November 2016 on the Gold Coast, Ms Schilling, 20, was beaten to death by her boyfriend Bronson Ellery who was dubbed ‘Lizard Man’ because of his extensive tattoos (especially around his face). 

Former bikie Mr Ellery, 24, took his own life soon after he killed Ms Schilling inside his apartment. It has since been discovered that while Ms Schilling was being beaten there were two other people inside of the unit, hiding in the bathroom. 

These two people (presumably because they were afraid of Mr Ellery), did absolutely nothing to stop the beating. Even when they came out of the bathroom and saw Ms Schilling (lying in a pool of her own blood on the floor) these two people did not call the police or ambulance. They didn’t even come forward to the police until about a week after the incident.

Since then, Ms Schilling’s family has been haunted by her brutal death and want questions around her final hours answered by way of a ‘Coronial Inquest’. In another article, we wrote about ‘Coronial Inquests’ and explained that they were special court hearings which are held when a death of a human being occurs. 

There are questions that need to be explored in order to, amongst other things, help avoid a death in similar circumstances occurring again. At the time of writing this article, Ms Schilling’s mother is wanting to know how Ms Schilling got to be at the unit and what other people who were there when she was killed did while she was being attacked. Ms Schilling’s mother wrote to the Coroner, “Why is it a criminal offence to leave the scene of a car accident, but it’s not a crime to leave the scene of a murder?”

A legal obligation to help?

The two people who were hiding in the bathroom could not be charged with failing to help Ms Schilling while she was being attacked and dying. That is because in Queensland, and every other state in Australia except for the Northern Territory, there is no duty to rescue another person who is in danger. This duty is referred to by many different names, but ‘bystander duty’ and ‘duty to rescue’ are the most common ones.

This position has hardly changed since 1883 when lawyer, judge and writer Sir James Fitzjames Stephen wrote that:  “A number of people who stand around a shallow pool in which a child is drowning and let it drown… are no doubt shameful cowards, but they can hardly be said to have killed the child.”

In Queensland, a person who allows a child to drown in shallow water while they stand by is not liable to criminal charges. They have no legal obligation to save the child unless they are a parent, caregiver or have some other relationship which means they have a duty of care to act.

Throughout our legal history, there has been a reluctance to enforce positive duties to act in a range of situations – the general theory being that as long as you do not directly inflict harm, you should be allowed to act as you please. This means there will only be limited circumstances where a person can be liable. This will be due to some pre-existing connection such as: 

    •       If you caused the danger or injury;
    •       If the injury or dangerous situation occurred on your property;
    •       If you have a duty of care because your position in relation to the person in danger, eg you are their parent, doctor, teacher, employer etc; or
    •       If you created a duty of care through your actions at the time the person was in danger.

Note that when it comes to complete strangers, the law has traditionally placed few obligations.

Does this position apply everywhere else in the world?

The answer is no. As mentioned above, the duty to rescue does not apply anywhere in Australia except the Northern Territory. 

In the Northern Territory the law imposes a general duty to rescue. It states that any person who is able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person who is urgently in need of it and whose life may be endangered but “callously fails to act” is committing an offence. The maximum penalty is seven years imprisonment. This has been described by one judge as the heaviest punishment for an equivalent offence in the world.

Most European countries have firmly entrenched the ‘duty to rescue’. This means that failing to help someone can be a criminal offence. Although this is recognised as an intrusion into personal liberty, it is justified on the basis that the temporary loss of freedom is outweighed by the interest in protecting other people.

While the law varies from country to country, it generally does not apply where a person would need to put themselves in grave danger by attempting a rescue. For example, jumping into a dangerous current to save a drowning swimmer. It generally only applies to the situation where a rescue would not pose a significant risk.

I suspect that some people might be surprised to learn of this position in Queensland, particularly when we used the example of the drowning child. So why does the law not impose an obligation to help others who are in danger? We answer this question in another article in this series.

If you’re needing advice or assistance with legal matters (including understanding your legal obligations), Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today. 

 

 

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