Negotiorum gestio: unjust sacrifice and officious intervention: a commonwealth caribbean perspective

• Author: Zanifa McDowell
• Position: Lecturer in Law, University of the West Indies, Faculty of Law, Cave Hill Campus, Barbados
• Pages: 235-255

NEGOTIORUM GESTIO:

UNJUST SACRIFICE AND

OFFICIOUS INTERVENTION:

A COMMONWEALTH

CARIBBEAN PERSPECTIVE

ZANIFA MCDOWELL*

Introduction

The plight of the necessitous intervener is a relative latecomer amongst the

issues demanding reform of legal treatment. As yet, there is in English law no

general legal recognition of the necessity to act as a ground for restitution. A

general principle supporting recovery is also absent from Commonwealth

Caribbean law except> perhaps, for Saint Lucia.

Unlike civil law systems, common law courts have been hesitant to reward

those who act as "good Samaritans"1 and appear to have adopted the view

that altruism should be its own reward.2 The issue is a complex one and the

dilemma as to whether or not the law should recognise a general right to

recovery in these cases is a serious one. The aim of

this

paper is to examine

the law relating to the necessitous intervener, to determine whether or not

there ought to be a general right to recovery in cases in which a person acts

in an emergency to benefit another, and if there should be such a right, to

determine the most appropriate guidelines upon which such recovery should

be

based.3

*Lecturer in Law, University of the West Indies, Faculty of

Law,

Cave Hill Campus,

Barbados.

1 See

Goff

and

Jones,

The Law of Restitution 461 (5th edn. Sweet and Maxwell, 1998).

2

Nicholson

v. Chapman (1793) 2 H Bl. 254; 126 ER 536

3 For detail ed chapters on this subject, see Peter

Birks,

An

Introduction

to the Law of

Restitution, Chap. VI (Clarendon Press, Oxford, 1996 Reprint); Andrew Burrows, The

In the society in which

we

live, possessing a neighbourly attitude towards

those we come into contact with is typical in our West Indian experience. It

is part of our culture, tradition, heritage and religion. While, for instance, there

is no law which says that one must intervene to save the child of

a

stranger if

one sees that child drowning

in

a shallow

pool,

it

is

nevertheless

easy

to predict

that anyone sensing such a danger would voluntarily intervene to save the

child. Common in our West Indian experience

is

the habit of leaving children

with friends and neighbours in the knowledge that they will be well looked

after and protected. Common in our experience is the sense of community

and communal living, especially in agricultural villages or areas

in

which some

may be less privileged than others. Assistance from our neighbours is some-

thing

which,

in our

experience,

we have

come

to

expect.

The idea, for instance,

of

a

neighbour's house being on fire, and fellow residents refusing to come to

his assistance by at least "throwing a bucket of water" onto the blaze is

considered outrageous. And it is also our experience that in so assisting, no

one contemplates that

he will

be rewarded. The most that can be said of what

is expected is that the intervener would unconsciously have in mind the vision

of

the

assisted person doing exactly the same for him if the shoes were on the

other feet But unfortunately not all cases are as simple as this. What if the

action of the intervener greatly benefits the assisted person and the intervener

suffers

a loss

in

the

process? Should

the

intervener

be

legally allowed to recover

the amount of his loss? Should he be compensated for his services? The

complex predicament in which a necessitous intervener who has sacrificed

himself to benefit another may find himself may be fully appreciated by

examining the following hypothetical situations.

Example 1

What if A's neighbour B, goes on vacation and during B's absence a pipe on

his premises springs

a

leak.

A

realises that the escaping water

will

cause severe

damage to B's property and that B will also be saddled with a weighty water

bill on his return if nothing is done about the leak so A takes it upon himself

to repair the leak and thereby suffers financial loss. Can

A

legally recover his

expenses from B when

B

returns and refuses to reimburse A? Could anyone

reasonably argue that

B has

not been incontrovertibly benefited by

A's

actions?

Law of Restitution, Chap. 8 (Butterworths, 1993); R. Goff and G. Jones, The Law

of

Restitution, Chaps. 17-18 (5th edn, Sweet and Maxwell, 1998); Gerard McMeel, The

Modem

Law

of

Restitution,

Chap, 9 (Blackstone Press, 2000); Graham Virgo, The

Prinriples

of the Law of Restitution, Chap. 11 (Clarendon Press Oxford,

1999).