Odpowiedzialność deliktowa za nieudzielenie pomocy

• Authors: Borysiak Witold

Title variants

EN

Tort liability for failure to render assistance

• Languages of publication: PL

Abstracts

EN

The article describes the problem of tortious liability for failure to render assistance. There are no legal systems that establish a duty to render assistance in the provisions of civil law. This stems from the fact that in most of them, the obligation to take actions derives from criminal law that imposes direct sanctions on those who do not render assistance (e.g. France, Germany, Austria and Switzerland). Nevertheless, even the tortious liability of a person who could easily and without risk rescue another but fails to do so is highly controversial from the comparative perspective. Some legal systems (mainly in common law countries) reject tortious liability in similar cases. Some authors argue that the failure to act in those cases does not cause direct damage and that the pure omission should not provide a basis for liability. There are also opinions that this issue should remain the subject of morality rather than law, and therefore a moral sanction, not a civil one, is appropriate in this respect. For that reason, the draft amendment to Austrian tort law and the Principles of European Tort Law include explicitly such a duty to act in the draft provisions. In Polish law, Article 162 of the Polish Criminal Code of 1997 governs the obligation to render assistance. According to the legal literature, the qualification of an act or omission as wrongful in criminal law prejudges that it is also unlawful in civil law. The scope of criminal liability established on the basis of Article 162 of the Polish Criminal Code covers most cases regarded in the comparative literature as potential grounds of tortious liability. The obligation to act can also potentially arise outside the scope of the situations covered by Article 162 of the Polish Criminal Code. It is possible when the omission would be contrary to the so-called rules of social coexistence (rules of morality). In such case, the potential existence of an obligation to render assistance should depend on several circumstances. Firstly, the omission of the potential rescuer must be intentional. Secondly, potential liability should be limited only to situations where the existing danger could lead to serious bodily injury or death to the person at risk. Thirdly, the cost of preventing or removing the threat on the part of the potential rescuer should be significantly lower than the importance of legal interests of the endangered person. Fourthly, the potential rescuer needs to have a real opportunity and appropriate skills to prevent or eliminate the existing threat, whether by providing help or support to the person at risk or informing those who could do so. Moreover, the obligation to render assistance may exist in situations where there is a specific relationship (even a factual one) between the parties that justifies providing aid to each other.

Keywords

EN

private law; civil law; civil responsibility; tort law; liability for own fault; wrongfulness; fault, affirmative duties; omissions; responsibility for omissions; duty to render assistance

• Publisher: Polska Akademia Umiejętności
• Journal: Kwartalnik Prawa Prywatnego
• Year: 2021
• Volume: 30
• Issue: 1
• Pages: 25-58

Contributors

author

Borysiak Witold

• University of Warsaw