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Horsley v MacLaren (The Ogopogo), [1972] SCR 441 (also Matthews v Maclaren) (Link)

Facts:

Family of Matthews and Horsley sued Maclaren who was the owner and operator of a boat cruiser. Maclaren invited Matthews and Horsley onto his boat. Matthews fell overboard. The crew attempted to rescue Matthews but the conditions were windy and water choppy and cold. Horsley jumped into help Matthews. Mrs. Jones jumped in as well to help. Matthews sank; Horsley was picked up but could not be resuscitated; Jones was picked up and saved.

Jones said that it was so cold as to be paralyzing in the water. Cause of death for Horsley was shock/unconsciousness of the cold water, followed by death. Maclaren was alleged to have been intoxicated.

Issue(s):

1. Does there exist a legal duty on the part of the defendant to come to the rescue of a passenger who fell overboard by reason of his own misfortune of carelessness?

2. What is the standard of conduct applicable in the performance of such a duty?

3. Did Maclaren have a duty to rescue Horsley?

Ratio:

1. Assuming the duty: Whether there is a duty or not, the moment you start acting you are subject to a duty that you cannot be negligent in fulfilling that duty.

2. Causation: Negligence has to cause the injury to the plaintiff.

3. Duty to rescuers: The general rule is 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. However, this is subject to whether the person's actions are faulty enough to induce the other party to risk his life.

Analysis:

1. Does there exist a legal duty on the part of the defendant to come to the rescue of a passenger who fell overboard by reason of his own misfortune of carelessness?
** No, common law indicates that there is no duty. There is no general duty to come to the rescue of a person who finds himself in peril from a source completely unrelated to the defendant, even where little risk or effort would be involved in assisting. The law leaves the remedy to a person’s conscience.
** However, there can be a duty under special circumstances/relationships (that of a carrier to a passenger in peril overboard – often about implied contract). Duty of affirmative care: employer/employee, occupier and lawful visitors.

** In this case, does the relation between the master of a pleasure boat and his invited guest require a legal duty to aid and rescue? If a person does attempt to rescue, then he is regarded as entering voluntarily into a relation of responsibility and therefore assuming the duty. Then, he will be liable for any failure to use reasonable care in dealing with him (and particularly if he abandons him in a position of danger).

2. What is the standard of conduct applicable in the performance of such a duty?
** What would the reasonable boat operator do in the circumstances?
** The defendant’s adoption of the wrong procedure in attempting to rescue was negligent
** Given the context of the defendant consuming alcohol and the extraordinary conduct during the rescue, there is probably causation between the alcohol and conduct
** But liability does not follow negligence unless the defendant’s conduct is the effective cause of the loss

Decision: There is a duty of care, and standard of care was not upheld
** BUT no causation: In this case, based on Horsley, Matthews was probably already dead and could not be saved.
** Therefore the defendant’s negligence was not the cause of Matthews’ death (no liability)

3. Denning argues 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"
** Any duty to Horsley must stem from the fact that the new situation of peril was created by Maclaren's negligence which induced Horsley to act
** Maclaren failed to comply with established rescue procedure
** However, Maclaren's actions were not faulty enough to induce Horsley to risk his life
** Errors in rescue were errors in judgement and not negligence
** Appeal dismissed


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