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Tuesday 19 February 2019
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Good Samaritan Liability

Since inception, the Motor Vehicles and Road Traffic Act 1934, as amended (MVRTA) has imposed a very nebulous duty on drivers (not passengers) involved in an accident. According to section 79.(1)(a), a driver is required to assist any person who has been injured or left unconscious as the result of an accident, and this assistance includes transportation to a hospital or doctor. Failure to do this is an offence according to section 79.(2), and the penalty according to section 91.(1) can be a hefty $3,000 fine or a six-month prison sentence.

The MVRTA is the most amended legislation in Trinidad and Tobago with almost 100 amendments to date, and it’s undergoing another amendment with the Motor Vehicles and Road Traffic Bill, 2014. Clause 215 of this Bill is a facsimile of section 79 of the MVRTA, with the distinct inclusion of a specific penalty for this section, which will be $5,000, once enacted.

During the parliamentary debate of this Bill on April 21, 2015, Senators Faris Al-Rawi and Devant Maharaj referred to clause 215 as a “good Samaritan clause”, but this appellation is absolutely erroneous. Au contraire, clause 215 is more accurately referred to as a “duty to rescue”.

A “good Samaritan” clause protects a volunteer rescuer from liability if the victim suffers any further damages or injury as a result of the assistance rendered. The quintessential example of this is Canada’s Good Samaritan Act, which also includes reimbursement for expenses incurred by the volunteer rescuer, which would include something like cleaning or replacing blood-soaked/stained car seats, etc. Also, during my preparation for the California State Bar, I have come across this clause in the California Business and Professions Code, which extends the protection from liability to other categories of emergencies. Regardless, there’s no such law in Trinidad and Tobago.

In contrast, a “duty to rescue/assist” clause requires an individual (a driver in our case) to give reasonable assistance to anyone who is injured or is in imminent danger, without any immunity from litigation if further injury or death occurs.

This “duty to rescue/assist” replaces a moral obligation with an unconscionable legal duty, leaving individuals open for lawsuits. Under normal circumstances, breaching a moral obligation could only make a person feel bad. It is illogical to legislate extreme altruism without protecting these people from being sued into oblivion. Whether or not assistance is rendered in an emergency situation, is a decision that should only be made by the individual. The only exception is when there is a “duty of care,” which arises when a “special relationship” exists, or when a person creates a hazardous situation. Our law imposes this responsibility on a driver even if s/he did not cause the accident.

Unfortunately, a proper explanation of the possible liability imposed on a good Samaritan, would lead me to discuss the “novus actus interveniens” defence to negligence, but this is not law school, and it’s definitely way beyond the scope of a newspaper column. However, ask yourself: who would be responsible if a driver attempts to practice his television-gained medical skills by giving cardio-pulmonary resuscitation (CPR) to a victim, accidentally cracking their ribs in the process? What happens if the driver tries to carry a victim, but drops them, causing further injury? Who’s to blame if attempts are made to move someone who has suffered spinal or neck injuries; an activity known to increase the risk of paralysis? Who compensates the rescuer if s/he is injured in the process?

It’s amazing to see laws imposing responsibility, and by extension, liability on non-medical professionals, not only endangering the lives of the victims, but placing an unnecessary burden on other people who may be just as traumatised.

Legal transplantation has been a staple of our country for years. We are copycats, whether or not the law is relevant.

So when Senator Maharaj said “persons are much more educated in our society to know that if persons are the victim of some unfortunate vehicular altercation that they leave them for the professionals,” isn’t this a direct contradiction of the law of which he was defending in Parliament? It sounds like, “there’s a law, but people are smart enough to ignore it.” It just goes to show that we copy laws and bring it to TT wholesale, without even understanding it ourselves.

With all the legal minds running around claiming to know the law in its entirety, I’m astonished that this law has remained on the books, teeming with litigation for all these years. And now, it’s being amended to make it “better”.

Being the reactive society that we are, it won’t be until a driver actually complies with this legislation and gets sued for everything s/he owns will we understand the insanity surrounding such an abstract law.

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