By Eugene Ang The video was watched by millions around the world. A toddler wanders onto the road next to a busy market in the Chinese city of Foshan. She is hit by a van, and lies in agony while passers-by ignore her plight. The girl is run over by another van, yet it takes five whole minutes before a woman finally carries her to the side of the road.

This incident, which happened in October, ignited a huge debate over the reasons behind the inaction of the passers-by. Some commentators suggested that they failed to act because they were afraid it would cause them to be embroiled in a lawsuit. Indeed, there have been cases in China where rescuers were wrongfully accused of causing harm to those they assisted. In a particularly notorious case, a Nanjing court even held that a rescuer was liable to compensate an elderly woman he took to the hospital, reasoning that he would not have done it had he not caused her injury.

These incidents have led to calls for Good Samaritan legislation to encourage rescuers to step forward and render assistance, with the city of Shenzhen leading the way with its draft legislation. Broadly, there are two types of Good Samaritan legislation. This article will explore both of them, and consider whether they should be adopted in Singapore.

The first type of Good Samaritan legislation confers statutory immunity on individuals who render assistance during emergencies. Such legislation vary from jurisdiction to jurisdiction. Whereas some restrict such immunity to fire fighters, police and emergency medical service providers, others do not impose such a restriction.

In 2008, then-Minister for Law, Professor Jayakumar clarified that there were no plans to enact such legislation in Singapore in the immediate future, citing the lack of “major liability concerns for helpful bystanders” as compared to the US. The Minister noted that a person who acted reasonably and exercised due care would generally not be found liable, and that there had been no encounter of reluctance on the part of citizens to assist in emergency situations.

The argument in favour of such legislation is clear – there is no doubt that providing statutory immunity will increase the willingness of individuals to render assistance during emergencies. However, it is socially undesirable to allow them to escape liability in all situations.

This view is supported by the fact that in many jurisdictions, Good Samaritan laws do not provide an absolute immunity from liability. For example, the statute in Vermont confers immunity only to rescuers giving assistance to persons whom he knows to be “exposed to grave physical harm”. Even then, this immunity does not extend to protecting an individual whose acts constitute “gross negligence”.

However, the difficulty in defining what constitutes “gross negligence”, as well as when a victim is said to be “exposed to grave physical harm”, militates against the imposition of this separate standard of care on rescuers. Instead, it would be preferable to continue applying the reasonable man test, but for courts to be fully conscious of the circumstances faced by the rescuer in the emergency situation.

The second type of Good Samaritan legislation impose a duty to rescue on individuals when they come across others who are seriously injured, and makes it a criminal offence to refuse aid if aid can be rendered without risk of harm to the individual. From a moral perspective, it can be argued that consciously omitting to rescue someone in need of help is no less culpable than other crimes such as criminal negligence, so it is not unfair to punish such individuals.

However, one practical consideration is the difficulty in knowing when the duty arises, and the content of such a duty, should it arise. For example, some commentators have questioned if the duty to rescue might extend to having to give money to starving beggars. In this regard, jurisdictions have been careful to limit the circumstances under which the duty arises (e.g. where the victim’s life may be endangered). Yet, there often remains much uncertainty as to what an individual has to do to discharge this duty.

The duty to rescue may also be exploited by criminals who pretend to be in urgent need of medical treatment in order to rob the passers-by who stop to help them. Such concerns were behind the failure of attempts to legislate such laws in several states in the US in the mid-1980s. Surely, it would be undesirable to for the state to impose a duty which puts its law-abiding citizens at risk.

However, should Parliament be minded to legislate a general duty to rescue, it would be helpful to learn how various jurisdictions have attempted to fine-tune their provisions in order to impose liability only in situations where the defendant’s conduct is of sufficient moral culpability.

One example is section 155 of the Criminal Code in the Northern Territory of Australia. The section reads, “Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for 7 years.”

First, the provision only applies when the victim suffers from a potential or actual life-threatening injury. Second, and more importantly, there is a requirement of callousness on the part of the defendant, which involves a “deliberate and conscious choice by an informed accused not to provide aid or assistance to the victim”, as opposed to an “impulsive or an unconscious choice”. (per Kearney J in Salmon v Chute [1994] 4 NTLR 149). Thus, it is arguable that a bystander who fails to assist because of an actual, though unreasonable, fear for his own safety, will not be found liable under the section. This accords with the sense that the state should only impose criminal liability in situations where the accused’s conduct is truly culpable, and restrains the broad nature of a general duty to rescue.

In conclusion, seeing the lack of reluctance on the part of Singaporeans to assist those in need of emergency assistance, there does not appear to be a pressing need to adopt Good Samaritan legislation locally. However, should such a need arise in future, the experiences of other jurisdictions will be instructive in drafting a law that encourages socially desirable acts of rescue without imposing an excessively onerous burden on citizens.