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Can you be liable for a failed attempt to rescue someone from drowning?
Year in and year out, hundreds drown. Each is tragic. Each is avoidable. Bystanders, particularly surfers, play a pivotal role in preventing drowning. But at what cost? Writes Hugh Powell.
Hugh Powell
Drowning: At what cost to rescue another?
Year in and year out, hundreds drown. Each is tragic. Each is avoidable. Bystanders, particularly surfers, play a pivotal role in preventing drowning. But at what cost?
The National Drowning Report 2023 recorded 281 drownings in the last year. Seventy-five of those were at the beach and is a 29 per cent increase on the 10-year average. Rip currents are the number one coastal hazard and are on the rise, with men the highest fatality. Most beach drownings occur in the height of summer holidays – January and February, and Saturdays and Sundays.
About two-thirds of drownings happen more than one kilometre away from a Surf Life Saving service. This is unsurprising given that only about 4 per cent of the 11,000-odd beaches in Australia are patrolled in some form. Inevitably, emergency assistance falls to bystanders in the absence of Surf Life Saving support, usually surfers or other beachgoers.
Thirteen per cent of drownings at beaches in 2022–23 were an attempted rescue of another. That’s 10 people in the last year who tried to do the right thing but paid the ultimate price.
The lack of accurate data about successful bystander rescuers could be because most go unreported. However, some studies suggest that surfers make as many rescues as trained professional lifeguards. Most surfers do not possess the same level of skill to save a life as a trained lifeguard. An average of 10 surfers drown themselves each year, and nearly 40 per cent of surfers have rated themselves as being a weak or average swimmer.
So, what liability could be attached to a surfer who attempts to rescue another but whose good intentions do not save a life?
Firstly, there is no proactive duty to rescue someone in danger. It is a moral obligation that compels us to act. Apart from the morally questionable nature of the issue, while it will always depend on the circumstances, it is hard to envisage a situation where a viable claim would arise due to numerous defences available. One exception could be if the rescue was conducted in a grossly negligent or reckless manner. And what if the surfer is injured during the rescue?
A claim could potentially be pursued directly against the person being rescued if the injury was a reasonably foreseeable consequence of the situation.
There is clearly value in generally allowing lifeguards (employed and volunteer) to conduct rescues without fear of being sued. In Queensland, generally, no liability will attach to a lifeguard for an act done while rendering first aid or assistance to another in an emergency. The situation in NSW is slightly different in that volunteer lifeguards are still protected, but vicarious liability could attach to their club or the council, depending on the circumstances.
While Australia has always had a strong professional lifeguarding and volunteer Surf Life Saving service, it is inherently impossible for all beaches to be patrolled at all times. Surfers and other beachgoers have historically done their best to plug the gap, and sometimes, this has sadly cost them their lives.
With the summer holidays now upon us and temperatures predicted to be higher than ever, there will be more people in the water and more pressure on our Surf Life Saving services. The beach is a hazardous and unpredictable environment, so let’s be safe this summer as we remember the brave people who put their own lives at risk to save another.
Hugh Powell is a partner and Sunshine Coast leader at Travis Schultz & Partners.
