Report No. 62
3.34. Emergency-section 51D, Employee's State Insurance Act, 1948.-
We now come to another point relevant to the expression "course of employment". It relates to action by way of rescue or otherwise in an emergency. At common Law the voluntary assumption of risk is regarded as justified (and hence not a bar to a claim in tort) in certain situations. Chief amongst these are the situations where a person is under a general or moral duty to save others from peril1 (e.g., a policeman stopping running horses in a busy street), or is under a legal duty to protect property, e.g., his master's2 (night watchman going back into burning premises) or otherwise acts instinctively3 (wife trying to save her husband from falling glass). Mostly these are situations of emergency. They have come to be known as "rescue" cases.
1. Haynes v. Harwood, (1935) 1 KB 146 (CA).
2. D. Urao v. Samson, (1939) 4 All ER 26.
3. Brandon v. Gxborne Garrett & Co., (1924) 1 KB 548.
3.35. These cases have a rationale. In the memorable phrase of Cardozo1, "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrong-door may not have foreseen the coming of a deliverer. He is accountable as if he had."
1. Wagner v. International Railroads, (1921) 232 NY 176 (New York Court of Appeals).
3.35A. Section 51D, E.S.I. Act.-
Section 51D of the E.S.I. Act, 1948 which is based on the same principle, is as follows:-
"51D. An accident happening to an insured person in or about any premises at which he is for the time being employed for the purpose of his employer's trade or business shall be deemed to arise out of and in the course of his employment if it happens while he is taking steps on an actual or supposed emergency at those premises, to rescue, succour or protect persons who are or are thought to be or possibly to be injured or imperilled or to avert or minimise serious damage to property."
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