T. E. HOPKINS & SON LTD.  v BAKER(Full Text with Summary)

T. E. HOPKINS & SON LTD. v BAKER(Full Text with Summary)


IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

July 24th 1959


B e f o r e :

LORD JUSTICE MORRIS

LORD JUSTICE ORMEROD

LORD JUSTICE WILLMER


BETWEEN:

T. E. HOPKINS & SON LTD.

v

AILSA BATTIE BAKER (Widow of Mark Gregory

Baker deceased) and

GEOFFREY MURKETT

(Executors of the Estate of Mark Gregory

Baker deceased)

v

T. E. HOPKINS & SON LTD.


MR. MARVEN EVERETT, Q.C. and MR. TUTOR EVANS (instructed by Messrs. Gregory, Rowcliffe & Co. agents for Messrs. Fishers, Ashby-de-la-Zouch)

appeared on behalf of the Appellants.

MR. M. K. HARRISON-HALL (instructed by Messrs. George Thatcher & Son agents for Messrs. A. H. & H. W. Timms, Burton-on-Trent)

appeared on behalf of the Respondent Florence Mary Ward, deceased.)

MR. F. W. BENEY Q.C. and MR. DOUGLAS LOWE (instructed by Messrs. Hempsons)

appeared on behalf of the respondents Baker and Murkett.

NOTABLE PRONOUNCEMENTS

LORD JUSTICE MORRIS said;

Mr. Justice Cardozo in Wagner v. International Railway Co. (1921) 232 New York Reports 176 at p. 180 –

“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. It recognises them as normal. It places their effect within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim: it is a wrong also to his rescuer.”

***

Those who put men in peril can hardly be heard to say that they never thought that rescue might be attempted, or be heard to say that the rescue attempt was not caused by the creation of the peril. As Lord Justice Greer said in Haynes v. Harwood [1935] 1 King’s Bench Division 146, 156: –

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence.”

Equally unavailing, in my judgment, is the plea which is expressed in the words “volenti non fit injuria”. In Letang v. Ottawa Electric Railway Co. [1926] Appeal Cases 725 it was said (at p. 730) –

“It is quite a mistake to treat volenti non fit injuria as if it were the legal equipollent of scienti non fit injuria.”

Approval was given of the proposition that

“If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.”

In Dann v. Hamilton [1939] 1 King’s Bench Division 509 at p. 517 Mr. Justice Asquith said that –

“Where a dangerous physical condition has been brought about by the negligence of the defendant, and, after it has arisen, the plaintiff fully appreciating its dangerous character, elects to assume the risk thereof, the maxim has often been held to apply and to protect the defendant.”

If, however, A by negligence places B in peril in such circumstances that it is a foreseeable result that someone will try to rescue B, and if C does so try — ought C in any appropriate sense to be described as a “volunteer”? In my judgment, the answer is No. I confess that it seems to me to be indeed ungracious of A even to suggest it. C would not have agreed to run the risk that A might be negligent for C would only play his part after A had been negligent. C’s intervention comes at the moment when there is some situation of peril, and the cause of, or the responsibility for, the creation of the peril may be quite unknown to C. If C, actuated by an impulsive desire to save life, acts bravely and promptly and subjugates any timorous over-concern for his own well-being or comfort, I cannot think that it would be either rational or seemly to say that he freely and voluntarily agreed to incur the risks of the situation which had been created by A’s negligence.

***

If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger.

LORD JUSTICE ORMEROD said;

Haynes v. Harwood [1935] 1 King’s Bench, 146, establishes that if one person by his negligence causes another to be in a position of danger, he should have regard to the probability that a third person might attempt a rescue

***

It may be that circumstances can arise of attempted rescue where the risk to the rescuer is so great, and the chances of rescue so small, that it could not be expected that a rescue would be attempted.

***

On this submission it is appropriate to adopt the words of Lord Justice Greer in Haynes v. Harwood at page 156 –

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence.”

***

but in any event the doctrine would not, in my judgment, apply in a case of an attempted rescue when the act was the natural and foreseeable result of the negligence of the defendants. I think the right view was expressed by Lord Justice Greer in Haynes v. Harwood where at page 157 he quoted a passage from an article by Professor Goodhart which ran as follows:

“The American rule is that the doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no special duty.”

Lord Justice Greer went on to say:

“In my judgment, that passage not only represents the law of the United States, but I think it also accurately represents the law of this country.”

LORD JUSTICE WILLMER said;

The man who concocts a deadly poison and leaves it in a bottle to which other people have access does not adequately comply with his duty to warn of the danger merely by affixing a label “Not to be taken”. A clear warning that the bottle contains poison would in such circumstances be imperatively required. In the present case, the danger was as deadly as it well could be, as Mr. Hopkins ought to have appreciated, and in such circumstances I cannot think that a mere order not to go down the well until he arrived, with out a word of warning of the danger of so doing, was a sufficient compliance with the duty which he owed. I think it must be clear that Ward cannot in fact have appreciated the degree of the danger; otherwise it seems inconceivable that he should have acted as he did.

***

In Admiralty proceedings the apportionment of blame has for many years been a familiar problem, and it was finally laid down by the House of Lords in The MacGregor [1943] Appeal Cases, 197, following a long line of previous authorities, that in case of collision between ships an appellate tribunal which accepts the findings of fact of the Court below should, in the absence of error in law, only revise the distribution of the blame in very exceptional cases, as where, for instance, a number of different reasons have been given why one ship is to blame, but the appellate Court find some of those reasons not to be valid, or where the judge n distributing the blame is shown to have misapprehended a vital fact bearing on the matter.

***

The case, therefore, raises once more the not unfamiliar problems, much discussed in the so-called “rescue cases,” which arise where A’s wrongful act puts B in a situation of peril, and C, a stranger, suffers injury in the course of attempting to rescue B.

It seems to me that in this case, as in any case where a plaintiff is injured in going to the rescue of a third party put in peril by the defendants’ wrongdoing, the questions which have to be answered are fourfold:

(1) Did the wrongdoer owe any duty to the rescuer in the circumstances of the particular case?

(2) If so, did the rescuer’s injury result from a breach of that duty, or did his act in going to the rescue amount to a novus actus?

(3) Did the rescuer, knowing the danger, voluntarily accept the risk of injury, so as to be defeated by the maxim volenti non fit injuria?

(4) Was the rescuer’s injury caused or contributed to by his own failure to take reasonable care for his own safety?

***

In the circumstances of the particular case is the rescuer in law the “neighbour” of the wrongdoer, in the sense that he is so closely and directly affected by the wrongdoer’s act that the latter ought reasonably to have him in contemplation as being so affected? Where the act of the wrongdoer has been such as to be likely to put someone in peril, reasonable foresight will normally contemplate the probability of an attempted rescue, in the course of which the rescuer may receive injury. In the American case of Wagner v. International Railway Co. 232 New York Reports, 176, a case decided in 1921, Mr. Justice Cardozo, as it seems to me, foreshadowed in a remarkable way Lord Atkin’s statement of principle, and applied it to a typical rescue case. At page 180 said:

“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. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”

Then a little later he went on:

“The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”

***

Dealing with the contention that the plaintiff’s act amounted to a novus actus, Lord Justice Greer said:

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence

FULL TEXT OF JUDGEMENT

LORD JUSTICE MORRIS:

The tragic events which gave rise to this litigation occurred within a very short space of time on Wednesday, 17th August 1955. The Appellant Company had been engaged to undertake the task of cleaning out a well at Tadser Farm, Ticknell, in the county of Derby, which had become contaminated. The well was about 50′ in depth with a diameter of 6′ 0″. On Saturday, August 13, Mr. Hopkins, together with his employees, Ward and Wileman, went to the farm. They appear first to have attempted to empty the well by using the hand pump which was normally used. It was obviously necessary to empty the well of water before it could be adequately cleaned. The hand pump proved to be ineffective for the purpose of pumping the water from the bottom of the well. An alternative method of pumping had to be devised. Mr. Hopkins decided to use a Pegson pump, which was one that was operated by a petrol engine. Mr. Hopkins went away in order to get the pump in question and returned with it and with other equipment on his lorry. Mr. Hopkins made a test of the atmosphere in the well. He adopted the method of lowering a lighted candle which was placed in a bucket. When the bucket was raised again the candle was still alight. The evidence showed that a candle would remain alight if the percentage of oxygen in the atmosphere was not below 17 per cent. Having made the test Mr. Hopkins and his two men proceeded to erect a wooden platform in the well at a position approximately 9′ above the existing water level in the well. The depth of the water in the well was approximately 12′ 0″. In the well there were certain permanent wooden fixtures which supported and contained the pipe through which water was pumped from the well. A ladder from the surface was placed on to one of the cross-members of the wooden structure; from that ladder it was possible to step on to a second ladder which was placed so as to reach down to the platform that was erected. The pump was lowered down to the platform. No sufficiently long delivery hose was then available. On Tuesday, August 16, Mr. Hopkins and the two men went again to the farm. The learned Judge accepted the evidence of Mr. Hopkins that he made a test by lowering a candle into the well and that the candle was not extinguished. A length of hose had to be obtained so that the water could be pumped to ground level. After that was obtained the petrol engine of the pump was started up. It was started by Ward, Mr. Hopkins being then halfway down the well. After some initial uncertainty the engine ran smoothly. Mr. Hopkins and Ward came up to the surface after the engine had been made to run and the latter made a remark to Mr. Hopkins to this effect:

“By gum, you couldn’t stay down there long; the fumes would kill you.”

Mr. Hopkins replied:

“That is how they commit suicide in motor-cars.”

The remarks so made were considered by the Judge to be by way of casual exchange. The petrol tank of the engine contained enough petrol to enable the motor pump to run for about six hours, and Mr. Hopkins considered that such period of time would be sufficient to enable the pump to clear the well. The engine was started just after 4 o’clock in the afternoon.

The evidence established that the use of a petrol-driven engine in the well was productive of most serious consequences. The exhaust from the petrol engine would contain carbon monoxide. Carbon monoxide is an odourless gas and is very slightly lighter than air but in the confines of the well, where the air would be undisturbed, it would not be drawn away or rise but would gradually build up a most dangerous concentration of lethal gas. It is not in contest in the litigation that the method employed was improper and was highly dangerous. There were no means of ventilation in the well.

The evidence showed that a concentration of half of one per cent. of carbon monoxide is fatal, and that a most dangerous quantity of carbon monoxide may be present even though the oxygen content of the air remains at over 17 per cent. The lighted candle test to which I have referred is, therefore, quite useless for the effective detection of carbon monoxide.

Mr. Hopkins was absolved from conduct that involved callousness or moral turpitude on his part, but it was clearly shown that by reason of his lack of knowledge and experience, and his failure to take advice, he employed a system which inevitably exposed those called upon to operate it to unnecessary risks. Mr. Hopkins did not appreciate the grave dangers of the system that he adopted, and did not know that the tests of the atmosphere in the well that he made were wholly ineffective as a means of detecting the presence of a highly dangerous concentration of poisonous gas.

Although when Mr. Hopkins first adopted the plan of having a petrol-driven pump some 30′ down in the well he had not appreciated the dangers that he was creating, he does appear to have had some sense of alarm after the pump had been working for a short time. When a friend of his, a Mr. Grew, called upon him while he was at the farm on that Tuesday afternoon he and Mr. Grew made a test to measure the depth of the water in the well. A test of the air was then made by attaching a lighted candle to a line and lowering it down into the well. After the candle had been lowered approximately 15′ 0″ the candle became extinguished. That took place at about 4.55 p.m. Shortly after that Mr. Hopkins went away from the farm leaving Ward and Wileman there. Before he went away Mr. Hopkins spoke to Ward, and it was held by the learned Judge that he used words to this effect:

“Don’t go down the well tomorrow until the fumes have cleared.”

Ward replied:

“All right.”

Ward and Wileman remained at the farm until approximately 5.30, but just before they left the engine stopped of its own accord. It had by then been running for about 1½ hours. It seems very probable that the reason why the engine stopped was that the well had become so devoid of oxygen that combustion in the engine was not possible.

Mr. Hopkins then became uneasy about the conditions in the well. He decided to go back there and did so at about 7 p.m. Ward and Wileman did not know of this visit and never came to know of it. Mr. Hopkins had expected to find the petrol engine still running but he learned that it had stopped just before his men, Ward and Wileman, left for the day. Looking into the well he saw that it contained a kind of blue haze and there was a smell of fumes.

Next morning, at 7.30, Ward and Wileman, in accordance with the usual practice, went to the yard of the Defendant Company at Ashby, and there met other employees and Mr. Hopkins. Certain orders for the men were given and Ward and Wileman were told that the lorry driver, whose name was Cartlidge, would drive them in the lorry to Tadser Farm. Before the lorry left the yard certain posts had to be unloaded and Ward and Wileman were to assist in their unloading. The lorry was to take certain tiles to a nearby village and was then to take the two men on. The learned Judge held that Mr. Hopkins said to Ward and Wileman:

“Frank (i.e., Frank Cartlidge) will take you to Tadser Farm and don’t go down that bloody well till I get there.”

From the yard Ward and Wileman took with them a partly filled 2 gallon can of petrol. Mr. Hopkins thought that the time which would be taken in carrying out the early duties would be about an hour. In fact the two men arrived at Tadser Farm at about a quarter past eight. Mr. Hopkins had an engagement which took him to Ellistown and he planned thereafter to go on to Tadser Farm.

After Ward and Wileman arrived at Tadser Farm, bearing with them the partly filled 2 gallon petrol can, they appear first to have made a test of the depth of the water in the well. So Miss Insley, who was staying at the farm, concluded by reason of some sounds that she heard. Then after the men had been at the farm some seven to ten minutes Miss Insley heard Wileman call out in a tone of some agitation —

“Bill, are you all right?”

Miss Insley called her brother-in-law, Mr. Taylor. Mr. Taylor went out and saw and spoke to Wileman, who said that he feared that his mate, who had gone down the well, must be ill. Mr. Taylor said that he would seek help and requested Wileman not to go down the well. Mr. Taylor went to a near-by farm in order to telephone for, or to cause telephone messages to be sent for, the police and for a doctor and to summon Mr. Hopkins. Miss Insley went outside shortly thereafter. She and Mrs. Taylor looked down into the well and listened. They could see that Wileman had gone down. He appeared to be on the platform down in the well. Heavy breathing could be heard and a splashing sound that may have been caused by the falling of petrol from the platform to the water below. Mr. Taylor returned and was accompanied by the neighbouring farmer. Being told of the situation Mr. Taylor went away in order to get the police to call a fire brigade that would have breathing apparatus. Then Dr. Baker arrived at the farm. It seems clear that in some manner he must have received a message or request to go there. The details of the subsequent events are chronicled in the very careful judgment of the learned Judge. Miss Insley told Dr. Baker what had happened and told him about the running of the petrol engine and, saying that the fire brigade had been sent for, suggested that he ought not to go down. Dr. Baker, who had by then tied a rope round his waist, said:

“There are two men down there. I must see what I can do for them.”

Miss Insley feared that Dr. Baker would, to use her words, “only make a third,” and urged him not to go into the well. But Dr. Baker, prompted by the finest instincts of humanity, proceeded to go down. He did so after arranging for Miss Insley and Mrs. Taylor to hold on to the rope and to pull him up if he called. He went down. He replied to Miss Insley’s enquiries and made oral reports of his progress. Thereafter the doctor became overcome and his weight came on to the rope. The two ladies had by then been joined by a Mr. Weaver, and the three of them proceeded to pull up the rope. Then, by the cruelest mischance the rope became caught and they could raise it no further. In the result Ward and Wileman and Dr. Baker lost their lives. Actions were brought against Mr. Hopkins’ company — T. E. Hopkins & Son Ltd. — in respect of the deaths of Ward and Dr. Baker. The claims were put forward under Lord Campbell’s Act and under the Law Reform Act. Mr. Justice Barry held that the claims succeeded and appeals are now brought to this court. In regard to the appeal in the action concerning Dr. Baker’s death there was a notice served by the respondents, Dr. Baker’s executors, under Order 58 r. 6 that it would be contended that the amount of the general damages should be increased. By a supplemental notice of appeal the appellants gave notice that in the event of their appeal as to liability being unsuccessful, they would contend that the amount of the damages should be reduced. With the approval of the court, the respective claims to increase or to reduce the damages were, however, withdrawn.

It will be convenient to deal first with the Baker case.

The claim which was put forward was that there was negligence for which the Company (T. E. Hopkins & Son Ltd.) was responsible, and that such negligence resulted in the death of Dr. Baker.

The first stage in the proof of the claim involves proof that the Company were negligent towards their employees, the second that such negligence caused such employees to be in peril, the third that this could reasonably have been foreseen, and the fourth that it could also have been reasonably foreseen that someone would be likely to seek to rescue them from their peril and might either suffer injury or lose his life. In the classic words of Lord Atkin in Donoghue v. Stevenson [1932] Appeal Cases 562, 580 –

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Neighbours are those persons

“who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

So in this case it is said that if the company negligently caused or permitted their servants to be placed in dire peril in a gas-filled well it ought reasonably to have been contemplated that some brave and stalwart man would attempt to save their lives. In the eloquent words of Mr. Justice Cardozo in Wagner v. International Railway Co. (1921) 232 New York Reports 176 at p. 180 –

“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. It recognises them as normal. It places their effect within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim: it is a wrong also to his rescuer.”

The decision of this court in Haynes v. Harwood [1935] 1 King’s Bench Division 146 shows (i) that there may be circumstances in which, if A by negligence places B in peril, A ought reasonably to contemplate or to have contemplated that C might endeavour to rescue B, and (ii) that if in such circumstances C suffers hurt he may recover damages from A. It is said that in the present case there was negligence on the part of the company and that, as a result, Ward and Wileman were placed in peril, and that as a further result Dr. Baker tried to rescue them, and in the attempt lost his life. But on behalf of the company it is submitted that even if the company was at fault in arranging to have a petrol-driven pump in the well the predicament of peril of Ward and Wileman was not a result of such fault. It is said that the instruction or admonition of Mr. Hopkins, expressed in the words which I have quoted, was such that the later presence of Ward and Wileman in the dangerous well must be attributed solely to a disobedience on their part of a direct prohibition, and not at all to any negligence which created the elements of danger in the well.

In considering this submission it becomes necessary to examine (a) the duty owed by the company to Ward and Wileman in the circumstances of this case, and (b) the nature of the instruction given and the effect of giving it. Stated in general terms, the duty of the company was to take reasonable care to provide for the well-being and safety of their employees so as to avoid exposing them to any unnecessary risks. When, however, the company set about the task which they had undertaken of cleaning out the well, they proceeded to adopt a method of operation which was extremely dangerous and unsafe. The employment of the petrol-driven pump in the well involved that lethal conditions would be created which might long persist. The pump could only be started if someone went down into the well: such person would soon thereafter be exposed to the risk of inhaling gases which might kill him. Such person, having started the engine of the pump, might come safely to the surface — but it might thereafter be unsafe for anyone to go into the well for many days or weeks. It is manifest that the petrol-driven pump would never have been used if there had been an appreciation of the most serious dangers as well as of the impracticabilities of the system adopted. But though the company were not indifferent or callous in regard to the welfare of their employees, the unawareness which allowed them to follow a most hazardous and dangerous method of operations cannot in law absolve or excuse them. But then it is said that Ward and Wileman were told on the Wednesday morning not to go down the well until Mr. Hopkins arrived, and so it is said that by the giving of that instruction the company discharged their duty to exercise reasonable care. It is argued that if Ward and Wileman had obeyed the instruction there would have been no situation of peril, and that if they had waited for the arrival of Mr. Hopkins there would then have been a test made by Mr. Hopkins of the air conditions in the well which would have revealed the dangers, and which would have brought it about that no one would have gone down. The question arises, therefore, as to whether the company did all that the dictates of reasonable care demanded. Involved in this question is the further question as to the nature of the instruction given.

The situation on the Wednesday morning was that the company had by the system they had adopted caused the well to be a place entry into which would probably result in death. Ward and Wileman had left their work the previous evening at the normal hour for finishing work, and neither then nor on the following morning was there any suggestion to them that operations in the well might have to be abandoned or for a long period suspended. The men were sent to the farm on the Wednesday morning. If there had been a proper realisation on the part of the company that a descent into the well would mean death, I cannot conceive that there would have been a failure so to inform the men. Common humanity and common sense alike would call for a warning in the clearest terms. If an unambiguous order to refrain in any circumstances from going into the well for a certain time was to be given, and if the reason for the giving of such an order was that disobedience to it would mean death, I cannot imagine that any employer could reasonably refrain from explaining and emphasising the reason for the order. In the case of the most trusted and diligent of employees it would be but prudence to warn them of the consequences that would befall them if, prompted by zeal and ardour, they set about their work. If noncompliance with an instruction will mean death from a lurking and hidden peril no reasonable employer, remembering that men may perhaps at times be forgetful or may not clearly understand, would fail to make sure that the nature of the peril was explained and described. I cannot think, therefore, that in the circumstances of this case the Company discharged their duty by the mere uttering of the words spoken by Mr. Hopkins. There was ample evidence to support the finding of the learned Judge that the words were spoken. But what instruction did the words convey? Unhappily neither Ward nor Wileman can say what they understood. They are not here to explain. They were conscientious and responsible men. It ought not lightly to be thought or held that they were recalcitrant or disobedient. If they had clearly understood that the direction to them was that they were to enjoy the August morning in peace and idleness there is no reason why they should not have been well content. If, however, they had known or thought that if they went into the well they would be entering a lethal chamber it is clear that they would never have gone. In my judgment they ought to have been warned of the perils that existed: I feel sure that they would have been warned had the company not been negligently ignorant of the great dangers of the system that they were negligently employing. In the case of dangers so appalling, it seems to me that a warning should have been given. Even if it be thought that Ward understood that he had been told not to go down the well under any circumstances until Mr. Hopkins arrived, and that, nevertheless, he for some reason proceeded to do so, it can with assurance be said that he would not have gone down if he had thought or known that he would be overcome by poisonous fumes. It will never be known why Ward went down. It will never be known whether he thought or realised that he was acting contrary to an order. It may be that his understanding was that he was not to go down the well for the purpose of cleaning it until Mr. Hopkins came, or was not to go down and then remain down it may be that he had not understood or had not thought that he was enjoined from going down in order to set the pump in motion. It may be that when he got to the well he forgot what had been said. It may be that, prompted by zeal, he did disobey an instruction, thinking that at least he ought to make an inspection. The true explanation can never be known. But if the employers had done what, in my judgment, they ought to have done, Ward would certainly not have gone down the well. Even if some fault is attributed to Ward it seems to me that his presence in the well must, at least in part, be attributable to the breach of duty of the company in the respects which I have described. It was, therefore, as a result of the company’s negligence (or, at least, was in part a result of it) that the time came when Ward was in dire peril in the well. The company could and should, in my judgment, have anticipated that if as a result of their negligence their men were exposed to great danger in the well, it would be a natural and probable consequence that someone would attempt a rescue. Subject to a consideration of certain further submissions made by the Appellant Company, it seems to me, therefore, that it is shown that Dr. Baker’s death was a result of the company’s negligence.

It is submitted, however, that the action of Dr. Baker in descending the well was a novus actus interveniens, and it is further submitted that the company could not reasonably have foreseen the possibility of such a disaster as that which occurred. In my judgment, these submissions are wholly unsustainable once it is held that the company were negligent in creating a situation of great danger and, further, in failing to warn their servants of it, or in failing to ensure that their servants would not be exposed to it. There is, happily, in all men of good will an urge to save those who are in peril. Those who put men in peril can hardly be heard to say that they never thought that rescue might be attempted, or be heard to say that the rescue attempt was not caused by the creation of the peril. As Lord Justice Greer said in Haynes v. Harwood [1935] 1 King’s Bench Division 146, 156: –

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence.”

Equally unavailing, in my judgment, is the plea which is expressed in the words “volenti non fit injuria”. In Letang v. Ottawa Electric Railway Co. [1926] Appeal Cases 725 it was said (at p. 730) –

“It is quite a mistake to treat volenti non fit injuria as if it were the legal equipollent of scienti non fit injuria.”

Approval was given of the proposition that

“If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.”

In Dann v. Hamilton [1939] 1 King’s Bench Division 509 at p. 517 Mr. Justice Asquith said that –

“Where a dangerous physical condition has been brought about by the negligence of the defendant, and, after it has arisen, the plaintiff fully appreciating its dangerous character, elects to assume the risk thereof, the maxim has often been held to apply and to protect the defendant.”

If, however, A by negligence places B in peril in such circumstances that it is a foreseeable result that someone will try to rescue B, and if C does so try — ought C in any appropriate sense to be described as a “volunteer”? In my judgment, the answer is No. I confess that it seems to me to be indeed ungracious of A even to suggest it. C would not have agreed to run the risk that A might be negligent for C would only play his part after A had been negligent. C’s intervention comes at the moment when there is some situation of peril, and the cause of, or the responsibility for, the creation of the peril may be quite unknown to C. If C, actuated by an impulsive desire to save life, acts bravely and promptly and subjugates any timorous over-concern for his own well-being or comfort, I cannot think that it would be either rational or seemly to say that he freely and voluntarily agreed to incur the risks of the situation which had been created by A’s negligence.

When Dr. Baker arrived at the well he proceeded to act as the promptings of humanity directed. He tried to save life. He tried to save the Company’s servants. He was doubtless trying to do the very thing that the Company hoped could be done. But, in any event, what he did was brought about by and was caused by the negligence of the Company. In these circumstances, the Company cannot say that he was a volunteer.

It was further said that Dr. Baker himself acted with negligence, and that his death was caused, or was partly caused, thereby. This contention was not advanced harshly or in the language of any carping criticism: it was said that Dr. Baker had been “unreasonably” brave. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. Such a contention cannot be here asserted. Dr. Baker tied a strong rope round his body and arranged for the rope to be held by those on the surface, and arranged to maintain oral communication with them. It must be remembered also that the chances of success of his attempt would diminish moment by moment if he tarried. He in no way acted recklessly or negligently. In my judgment, the learned Judge came to a correct conclusion in regard to the claim made by his executors.

The conclusions at which I have arrived make it unnecessary for me to express any view in regard to certain alternative submissions made by Mr. Beney. It was said that, even if the Company had not been negligent, they would be vicariously responsible for any negligent acts of Ward or Wileman while acting within the scope of their employment: and it was said that if Ward or Ward and Wileman were wholly to blame, and as a result put themselves in a position of peril of a kind which invited rescue, they would be liable directly, and the Company vicariously, for any injury caused to someone who, as could have been foreseen, would attempt a rescue.

I pass now to consider the appeal in the claim concerning the death of Ward. With some hesitation the learned Judge came to the conclusion that 10 per sent of the blame should be attributed to Ward himself. The learned Judge said: –

“I have hesitated for some time before reaching a conclusion that any blame should properly be attributed t Ward, but looking at the evidence as a whole I feel bound to think that a small – indeed a very small – part of the blame must rest upon his shoulders.”

The Appellants submitted in this as in the Baker case that the negligence of the Company was not in any way causative of the fatalities that occurred and that these ought to be solely attributed to disobedience of orders not to go down the well: the submission in effect was that the Company had discharged their duty to take reasonable care of their employees by the utterance of the words spoken by Mr. Hopkins. I have already given my reasons for my conclusion that this submission cannot be upheld. In the circumstances of the case the Company were negligent in the first place in creating a situation of acute danger and the were further negligence in failing to give a clear warning of it so as to ensure that their servants would not do anything while remaining in ignorance of the danger and of its nature and extent. But then come the question whether Ward was himself negligent and if so to what extent. It is argued with much force that if he was told not to go down the well but nevertheless did so his share of responsibility for what happened, even accepting that his employers were negligent, was a large one. This necessitates forming a conclusion as to the nature of the instruction given and as to the effect of giving it. We know what was said by Mr. Hopkins but as I have pointed out we will never know Ward’s version of the matter. Ward and Wileman were sent to the farm. The expectation undoubtedly was that operations in the well would continue that day. During the previous afternoon Ward had acquired knowledge that the petrol driven pump caused objectionable deleterious fumes in the well and on that afternoon he had been told by Mr. Hopkins not to go down into the well the next day until the fumes had cleared. It may be that on the Wednesday morning Ward thought that the fumes had cleared; it may be he made a visual inspection and believed that they had and then went down the well to ascertain the state of affairs. I t may be that he thought that what was said in the Wednesday morning was not a firm command and was not intended to prohibit either a reconnaissance or a descent in order to re-start the pump. It can be assumed that the petrol can was being taken to the farm because it was anticipated that the petrol tank on the engine of the pump might have to be refilled so that the pump could be put in operation. It may be that Ward thought that he was to wait for Mr Hopkins’ arrival before doing any work down the well, but that he assumed that it was essential to continue the pumping out and that he assumed that Mr. Hopkins had not meant his words to be taken so literally that even any necessary pumping out of the well was not to proceed. Mr. Hopkins did not tell Ward and Wilman that he had paid a special visit to the farm the previous evening and they may have thought that he would be under the impression that the pump would have gone on working the previous evening and pumped out the water: on this basis they may well have understood his words to mean that the clearing out of the well was to await his arrival: they would therefore think it appropriate and not contrary to the intention or spirit of his words for the to cause the pump to resume its pumping. Though much is uncertain it can be confidently assumed that if Ward and Wilman had been told that the well contained a very powerful lethal mixture which would probably kill anyone who went into the well Ward would not have gone down. There was no sort of gain or advantage for Ward inbeing deliberately disobedient and on the available evidence I do not think that it is appropriate to infer that he was. The learned Judge does not in terms indicate the respect in which he considered Ward to have been blameworthy. It is possible that he thought that Ward ought to have made some test before going into the well by he would appear to have negatived the view that Ward was deliberately disobedient. The learned Judge was very doubtful whether he should subscribe any blame to Ward at all but after considering the matter with manifest care he decided that there was a very small degree of blame and that nearly the whole of the blame rested with the Company. I see no reason to differ from this conclusion.

LORD JUSTICE ORMEROD:

In considering the various issues raised in these appeals I find it convenient to consider first the case of Ward. It cannot be disputed that the system attempted to be operated by the defendants through Mr. Hopkins to pump the water from the well was most dangerous. The well was about 60′ in depth and 6′ in diameter. The pump, which was operated by a petrol motor, was placed on a platform a few feet above the level of the water. I should have been obvious to Mr. Hopkins that a fatal concentration of carbon monoxide would rapidly be built up in the atmosphere at the bottom of the well, and that with no provision for ventilation it might well be a considerable time before the fumes had cleared sufficiently for the well to be entered with safety. The evidence shows that Mr. Hopkins was aware at least to some extent of the dangerous nature of carbon monoxide fumes. So much is clear from his conversation with Ward on the Tuesday afternoon when Ward after starting the engine came up to the surface and made a remark about the fumes in the well, to which Hopkins replied:

“That is how they commit suicide in motor cars”.

He told Ward and Wileman before he left the farm not to go down the well the following day until the fumes had cleared. It is clear too that he was uneasy on the Tuesday evening about situation. He went up to the farm about 7 p.m. and found that the engine had stopped and that the well appeared to be filled with a kind of blue haze. But he did not seem to have appreciated that the danger would remain. He seems to have expected the well to be fit for his men to enter on the Wednesday morning although he took the precaution of saying to them before they left the yard:

“Don’t go down that bloody well till I get there”.

According to his evidence he intended to test the atmosphere in the well with a lighted candle before he allowed the meant to go down. This test as the evidence shows is of no value so fare as disclosing the presence of carbon monoxide in concerned, as a candle will continue to burn if there is present 17 per cent. of oxygen even although there is at the same time a fatal concentration of carbon monoxide. It is clear therefore that the defendants had embarked upon an operation calculated to involve their employees in grave danger. It is not suggested that in any way Mr. Hopkins was careless of the safety of his employees. He was not, however aware to any real extent of the dangers to which he was committing them and he took no expert advice ion the matter. It would seem therefore that the defendants were in breach of their duty to Ward to provide a safe system of work. But it is argued by Mr. Marven Everett that in the circumstances the death of Ward was due not to any breach of duty on the part of the defendants but to Ward’s own conduct in going down the well in disobedience to Mr. Hopkins’ instructions not to go down until he came. I find myself unable to accept that submission. It is not known why Ward went down the well on the Wednesday morning. He appears to have been a conscientious and responsible workman who would be unlikely to go down in reckless disobedience to an order, particularly if he knew of the danger of so doing. We know that the motor had stopped on the Tuesday evening before the men left work and that neither Ward nor Wilman had reason to know the Mr. Hopkins was aware of the fact. A possible explanation of Ward’s conduct is that he went down to restart the motor so that the water could be pumped out whilst they were waiting for Hopkins to come. But it can only be a matter for speculation. Had Hopkins told Ward that it might well be fatal if he went down the well the position would have been different. He did not do so however. He told him on Tuesday afternoon not to go down on the Wednesday until the fumes cleared, and on the Wednesday morning he told him not to go down until he, Hopkins, came. Neither of these instructions was calculated to convey to Ward any idea of the deadly nature of the atmosphere in the well. In my judgment it was the duty of Mr. Hopkins to give Ward a clear warning of the danger. He failed to do this and was in consequence in breach of his duty to Ward.

It was pleaded by the defendants that even if there was a breach of duty on their part there was also negligence on the part of Ward in going down the well in disobedience to the instructions given to him. The defendants submitted that a large part of the blame should be attributed to him. The learned Judge found himself in the circumstances unable to acquit Ward from blame entirely, but considered his share of the blame should not be put higher than 10 per cent. I would not, for my part, seek to disturb the conclusions of the learned Judge on this part of the case.

The first question which falls for consideration in the case of Dr. Baker is whether, in the circumstances, the defendants owed any duty to him. If Mr. Hopkins should have foreseen, and, in my view, he should, that in the absence of a clear warning of the danger Ward or Wileman might go down the well and be overcome by the fumes, should he also have foreseen that some person might attempt to rescue them, and, in so doing, suffer injury? Haynes v. Harwood [1935] 1 King’s Bench, 146, establishes that if one person by his negligence causes another to be in a position of danger, he should have regard to the probability that a third person might attempt a rescue. In my judgment, in this case Mr. Hopkins should have foreseen that a rescue would be attempted, and that efforts would be made to obtain the help of a doctor. The defendants did not, I think, dispute that, in these circumstances, a doctor, endeavouring to assist, might well come within this class of rescuer, but they argued that the conduct of Dr. Baker, who, they agree, acted with supreme courage, was such that it was not reasonable to expect them to foresee it. It is true that Dr. Baker was probably fully aware of the dangerous condition of the atmosphere of the well. Miss Insley had told him that the petrol engine had been running at the bottom of the well, and tried hard to persuade him not to go down. He knew that there were two men in the well who had obviously been overcome by the fumes. But, in accordance with the high tradition of his profession, he said:

“There are two men down there — I must see what I can do for them,”

and went down the ladder with the tragic consequence that he in turn was overcome. It may be that circumstances can arise of attempted rescue where the risk to the rescuer is so great, and the chances of rescue so small, that it could not be expected that a rescue would be attempted. That, however, is not this case. Before he went down the well Dr. Baker tied a rope round his waist and arranged for Miss Insley and Mrs. Taylor to pull him up if he called. He then went part of the way down the well. There is some doubt from the evidence how far down he went, but he seems to have gone far enough to make sure that there was nothing he could do to help the men. He then gave Miss Insley the signal to pull him up, and it appears probable he would have been brought out of the well but for the tragic circumstance that the rope became jammed. Dr. Baker’s conduct was highly courageous, but it was not foolhardy. He took precautions that might well have been effective for his own rescue in case he felt that he was being overcome. This is conduct which, in my judgment, Mr. Hopkins should reasonably have foreseen. I cannot do better than adopt the words of the judge:

“It is beyond question that the late Dr. Baker acted as he did in an urgent and passionate desire to do everything that he could, even at great risk to himself, to preserve human life. It would be an insult to the profession to which he belonged if I were to hold that such conduct, on the part of a brave and humane doctor, could not be reasonably anticipated by those whose negligent acts created the peril which he sought to avert. From Miss Insley’s evidence it is clear that Dr. Baker was fully alive to the risk, but I can find no evidence to suggest that he voluntarily undertook to accept all the consequences of the defendants’ negligence; nor do I think that he acted in a foolhardy or unreasonable way. Despite the emergency, he arranged for himself to be roped, and, had it not been for the quite unforeseeable mischance of the rope becoming caught in the down pipe or cross-members of the well, he might easily have been hauled to the surface and his life saved. The defendants, whose negligence brought about the danger, must, however, accept the risk of mischances of this kind.”

The defendants submitted further that they could be under no liability in the case of Dr. Baker as his conduct in going down the well consisted of a novus actus interveniens. On this submission it is appropriate to adopt the words of Lord Justice Greer in Haynes v. Harwood at page 156 –

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence.”

Here the want of care alleged was creating a situation of danger in the well, and failing to warn the two men in terms which would ensure that they would not expose themselves to it. It cannot, in my view, be a case of novus actus interveniens if the conduct of Dr. Baker is the sort of conduct which the defendants should have foreseen would happen as a result of such want of care.

The next question for consideration is whether the defendants can avail themselves of the protection of the doctrine volenti non fit injuria. In my judgment, they cannot so avail themselves. The important word is volenti and not scienti. Dr. Baker may well have had knowledge of the risk he was running, but that is wholly different from saying that he freely and voluntarily took the risk. He was a member of the medical profession, schooled in the tradition to do all he could to save life and relieve suffering. In addition he was a brave man, and, in my view, he acted under the compulsion of his instincts as a brave man and a doctor. This would, I think, be sufficient to dispose of the defence of volenti non fit injuria, but in any event the doctrine would not, in my judgment, apply in a case of an attempted rescue when the act was the natural and foreseeable result of the negligence of the defendants. I think the right view was expressed by Lord Justice Greer in Haynes v. Harwood where at page 157 he quoted a passage from an article by Professor Goodhart which ran as follows:

“The American rule is that the doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no special duty.”

Lord Justice Greer went on to say:

“In my judgment, that passage not only represents the law of the United States, but I think it also accurately represents the law of this country.”

The last plea raised by the defendants was that of contributory negligence. In my view, in this case, the plea cannot help the defendants. The facts must be considered as they presented themselves at the time to Dr. Baker. There was an emergency as a result of which two men’s lives were in grave danger. If they were to be saved urgent action was required. Dr. Baker attempted to take that action, but not without taking such precautions as he could for his own safety. In the circumstances he did what he felt he must do. He could not be expected to have foreseen that the rope would have become jammed, and his precautions be of no help to him. There is not, on the facts of this case as disclosed by the evidence, any ground, in my judgment, for a finding of contributory negligence on the part of Dr. Baker.

For these reasons, I would dismiss both these appeals.

LORD JUSTICE WILLMER:

I am in no doubt that both these appeals must be dismissed. The conduct of Mr. Hopkins was, in my judgment, blameworthy in the extreme. The gravamen of his fault lay in the fact that he embarked on a most hazardous enterprise without apparently seeking any advice or taking any steps to ascertain or guard against the dangers which he was creating. I need not enlarge upon this, for the argument for the appellants has not been directed to this aspect of the case, and it is sufficient to say that I find myself wholly in agreement with the judge’s conclusion that Mr. Hopkins “embarked upon the whole enterprise with almost complete disregard to its danger.”

So far as Ward’s case concerned, what is contended is that, however blameworthy Mr. Hopkins’s conduct may have been in creating such a dangerous hazard, he was guilty of no breach of duty towards his two employees because, by ordering them not to go down the well until he arrived, he sufficiently discharged any duty which he owed them to take care for their safety. Had that order been obeyed no casualty to the two men could possibly have occurred, and consequently, it is argued, Ward by going down the well in defiance of his orders was the author of his own misfortune. In other words, it is said that Mr. Hopkins’ order and Ward’s disobedience of it broke the chain of causation arising from Mr. Hopkins’ prior fault. The learned judge rejected this argument, and held that the order given by Mr. Hopkins to the two men not to go down the well was not sufficient to absolve the defendants from responsibility. He held, however, that Ward was guilty of contributory negligence in going down the well in disobedience to the order, and he assessed the proportion of blame attributable to Ward at 10 per cent. There has been no cross-appeal by the plaintiff in Ward’s case against this finding of contributory negligence. But it has been contended on behalf of the defendants that, assuming this to be a case of contributory negligence, the proportion of blame attributed to Ward have been substantially greater.

I find myself in agreement with the view expressed by the learned judge that the orders given by Mr. Hopkins to the two men were not sufficiently precise and urgent to absolve the defendants from blame. The vital order given on the morning of the accident must be considered in the context of what had occurred on the previous day. It is true that the men were aware of the fumes that had been given off by the working of the engine, and it is not in dispute that there was some conversation between Mr Hopkins and Ward about the danger of the fumes. But there is nothing to show that even after his experience at the bottom of the well on the previous day Ward realised just how deadly the danger was; not was there any reason why a man in his position should have realised that danger would remain in the following morning, more than twelve hours after the engine had stopped running. On the contrary, Mr. Hopkins’ order of the previous evening that the men were not to go down until the fumes had cleared was calculated to have precisely the opposite effect. It would lead an ordinary man to suppose that the fumes might be expected to clear after the engine had stopped working, and that it would then be safe to go down. On the following morning the two men were sent back to the farm, presumably for the purpose of working at the well. In such circumstances they may well have been puzzled to receive an order not to go down until Mr. Hopkins arrived. What were they expected to do in the meantime? Mr. Hopkins’ order no doubt amounted to a prohibition against going down to the platform for the purpose of re-starting the engine. But did it prohibit going a few steps down the ladder to have a closer look at the situation below and perhaps test for fumes? For all that we know to the contrary, this may be just what Ward was trying to do when he was overcome. The learned judge was in my judgment well warranted in saying that the order was insufficiently precise.

But the real vice of the order given by Mr. Hopkins was that it conveyed no, or no sufficient, warning of danger. I agree with Mr. Beney’s submission that Mr. Hopkins, having created the dangerous situation inside the well, was under an imperative duty to warn his men of the danger in the clearest possible way. The man who concocts a deadly poison and leaves it in a bottle to which other people have access does not adequately comply with his duty to warn of the danger merely by affixing a label “Not to be taken”. A clear warning that the bottle contains poison would in such circumstances be imperatively required. In the present case, the danger was as deadly as it well could be, as Mr. Hopkins ought to have appreciated, and in such circumstances I cannot think that a mere order not to go down the well until he arrived, with out a word of warning of the danger of so doing, was a sufficient compliance with the duty which he owed. I think it must be clear that Ward cannot in fact have appreciated the degree of the danger; otherwise it seems inconceivable that he should have acted as he did.

Mr. Marven Everett, however, has insisted that the sole operative cause of Ward’s death was his failure to obey the order of his employer. Had Ward waited till Mr. Hopkins arrived, the latter would have made a further test with a lighted candle; this would doubtless have gone out, whereupon the danger would have been fully appreciated by all, and nobody would have gone down the well. Mr. Hopkins, it is argued, was entitled to expect obedience from his own employees; if they obeyed his orders, as was their duty, there could be no danger, and therefore there was no further duty to warn. In my judgment this argument places far too much emphasis on the duty of employees to obey the orders of their employer. We are not dealing here with men subject to military discipline – and even if we were, it would be proper to observe that in modern times it is realised that soldiers can best be expected to obey the orders they receive if they are made to understand the reason for them. If Mr. Marven Everett’s argument were sound an employee who sustained injury while in disobedience to his employer’s orders could never be entitled to recover damages. Yet Mr. Beney has been able to bring to our attention numerous cases in which employees who have disobeyed their orders have nevertheless been held entitled to recover damages – diminished, it is true, to the extent of own degree of fault – against employers who have themselves been in breach of their duty. The fact that most of the cases referred to were cases where the breach of a statutory duty is not to my mind a matter of any significance. The question whether the employer was in breach of his statutory or of his common law duty cannot make any difference to the effect of disobedience on the part of the employee.

In these circumstances, I am satisfied that Mr. Hopkins, having in breech of his duty to his employees created a situation of the utmost peril, was in further breach of his duty in failing to give them any adequate warning of the danger. I am satisfied that this failure on the part of Mr. Hopkins, for which the defendants are liable, continued in operation throughout, and was of “causative potency” in relation to the death of Ward – to borrow the phrase used by Lord Justice Denning in Davies v. Swan Motor Co. [1949] 2 King’s Bench, 291, at page 326. That Ward was also guilty of negligence in disobeying the order he received is not now in issue, but I find it difficult to imagine a case in which it could more truly be said that the second act of negligence (Ward’s) was “so much mixed up with the state of things brought about by the first set” (Hopkins) as to make it a cause of contribution, to use the test laid down by Lord Birkenhead in The Volute [1922] 1 Appeal Cases, 129, at page 144.

This being so, the only remaining question in relation to Ward’s case is with regard to the apportionment of blame at which the learned judge arrived. In Admiralty proceedings the apportionment of blame has for many years been a familiar problem, and it was finally laid down by the House of Lords in The MacGregor [1943] Appeal Cases, 197, following a long line of previous authorities, that in case of collision between ships an appellate tribunal which accepts the findings of fact of the Court below should, in the absence of error in law, only revise the distribution of the blame in very exceptional cases, as where, for instance, a number of different reasons have been given why one ship is to blame, but the appellate Court find some of those reasons not to be valid, or where the judge n distributing the blame is shown to have misapprehended a vital fact bearing on the matter. It was suggested by Mr. Marven Everett that in relation to apportionment of blame under the Law Reform (Contributory Negligence) Act, 1945, the same strict rule has not been applied, and that a appellate tribunal has a grater measure of freedom to interfere, and be cited as illustrations the cases of Staple v. Gypsum Mines (1953) Appeal Cases, 663, and England v. National Coal Board [1949] Appeal Cases, 403. On examination of the speeches of the majority in these two cases I am not satisfied that Mr. Marven Everett’s submission is well founded. Be that as it may, I certainly do not think that this is a case in which this Court would be justified in interfering with the learned judge’s apportionment. If, as I think must be the case, he took the view that, in the absence of any warning by Mr. Hopkins of the danger involved, Ward’s failure to comply with the order not to go down the well was little more than a technical act of disobedience, he was in my view amply justified in reaching that conclusion in all the circumstances of this case. In my judgment, having regards to the evidence before him, the learned judge arrived at a proper and just determination of the relative degrees of fault as between Ward and Mr. Hopkins.

The conclusion that the negligence of Mr. Hopkins was a substantial contributory cause of Ward’s death is a matter of vital importance in connection with Dr. Baker’s case. It becomes unnecessary to consider what would have been the position had Ward’s predicament been brought about entirely by his own fault, which would, in turn, have involved consideration of the difficult question whether Ward was acting within the scope of his employment, so as to affect the defendants, his employers, with responsibility. Dr. Baker’s case falls to be determined on the basis that Mr. Hopkins’ own negligence was at least a substantial cause of the peril in which the two men, Ward and Wileman, found themselves, and which led to their death. The case, therefore, raises once more the not unfamiliar problems, much discussed in the so-called “rescue cases,” which arise where A’s wrongful act puts B in a situation of peril, and C, a stranger, suffers injury in the course of attempting to rescue B.

It seems to me that in this case, as in any case where a plaintiff is injured in going to the rescue of a third party put in peril by the defendants’ wrongdoing, the questions which have to be answered are fourfold:

(1) Did the wrongdoer owe any duty to the rescuer in the circumstances of the particular case?

(2) If so, did the rescuer’s injury result from a breach of that duty, or did his act in going to the rescue amount to a novus actus?

(3) Did the rescuer, knowing the danger, voluntarily accept the risk of injury, so as to be defeated by the maxim volenti non fit injuria?

(4) Was the rescuer’s injury caused or contributed to by his own failure to take reasonable care for his own safety? All these questions are raised by the circumstances of this case, and have been much canvassed in argument before us.

I will endeavour to deal with each in turn.

(1) The question whether the wrongdoer owed any duty to the rescuer must be determined, in my judgment, by reference to Lord Atkin’s familiar statement of the law in Donoghue v. Stevenson [1932] Appeal Cases 562 at page 580 when he said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

In the circumstances of the particular case is the rescuer in law the “neighbour” of the wrongdoer, in the sense that he is so closely and directly affected by the wrongdoer’s act that the latter ought reasonably to have him in contemplation as being so affected? Where the act of the wrongdoer has been such as to be likely to put someone in peril, reasonable foresight will normally contemplate the probability of an attempted rescue, in the course of which the rescuer may receive injury. In the American case of Wagner v. International Railway Co. 232 New York Reports, 176, a case decided in 1921, Mr. Justice Cardozo, as it seems to me, foreshadowed in a remarkable way Lord Atkin’s statement of principle, and applied it to a typical rescue case. At page 180 said:

“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. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”

Then a little later he went on:

“The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”

The judgment of Mr. Justice Cardozo was referred to with approval by Lord Wright in Bourhill v. Young [1943] Appeal Cases 92, and Lord Wright went on to say, at pages 108 and 109:

“This again shows how the ambit of the persons affected by negligence or misconduct may extend beyond persons who are actually subject to physical impact. There may, indeed, be no one injured in a particular case by actual impact, but still a wrong may be committed to anyone who suffers nervous shock or is injured in an act of rescue.”

I should also refer to The Cropesa, [1943] Probate, 32, where Lord Wright, at page 39, quoting from the speech of Lord Haldane in Canadian Pacific Railway Co. v. Kelvin Shipping Co. 138 Law Times, 369, said:

“Reasonable human conduct is part of the ordinary course of things.”

Assuming the rescuer not to have acted unreasonably, therefore, it seems to me that he must normally belong to the class of persons who ought to be within the contemplation of the wrongdoer as being closely and directly affected by the latter’s act. In the present case the fact that Dr. Baker was a doctor is of itself significant. Having regard to the nature of the peril created by the wrongful act of Mr. Hopkins, it was only too likely that a doctor would be summoned — as Dr. Baker in fact was — and, if summoned, would attempt to do all he could for the victim, even at the risk of his own safety. In such circumstances I am satisfied that Dr. Baker was one of the class who ought to have been within the contemplation of Mr. Hopkins when he brought about the dangerous situation at the bottom of this well. I do not think, therefore, that it is open to the defendants to contend that no duty was owed by Mr. Hopkins to Dr. Baker.

(2) The question whether the act of the rescuer amounts to a novus actus answers itself, in my judgment, as soon as it is determined that it is the kind of act which ought to have been within the contemplation of the wrongdoer, so as to bring the rescuer within the class of persons to whom a duty was owed. I cannot do better than quote the words used by Lord Justice Greer in Haynes v. Harwood [1935] 1 King’s Bench Division 146 — a case in which a police officer was injured while attempting to stop two runaway horses drawing a van, which had been left unattended through the negligence of the defendants’ servant. Dealing with the contention that the plaintiff’s act amounted to a novus actus, Lord Justice Greer said:

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v. Baxendale, (1854) 9 ExCh 341 the accident can be said to be the ‘natural and probable result’ of the breach of duty. If it is the very thing which ought to be anticipated by a man leaving his horses, or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act.”

In Hyett v. Great Western Railway Co. [1948] 1 King’s Bench, 345, these words of Lord Justice Greer were expressly approved and followed by Lord Justice Tucker, with whose judgment the other two members of the Court concurred. They must, therefore, be regarded as authoritative so far as this court is concerned. In my judgment, it was a natural and probable result of the wrongdoing of Mr. Hopkins that, in the likely event of someone being overcome by the carbon monoxide poisoning, a doctor would be called in, and that such doctor, having regard to the traditions of his profession, would, even at the risk of his own safety, descend the well for the purpose of attempting a rescue. Unless it can be shown, therefore, that Dr. Baker displayed such an unreasonable disregard for his own safety as to amount to negligence on his own part — with which suggestion I will presently deal — I do not think it can be said that his act constituted a novus actus interveniens.

(3) The next question is whether the plaintiff in Dr. Baker’s case is defeated by the maxim volenti non fit injuria. Our attention was directed to a passage in the judgment of Mr. Justice Asquith in Dann v. Hamilton, [1939] 1 King’s Bench Division 509, where he said, at page 517,

“Where a dangerous physical condition has been brought about by the negligence of the defendant, and, after it has arisen, the plaintiff, fully appreciating its dangerous character, elects to assume the risk thereof, the maxim has often been held to apply, and to protect the defendant.”

These words were clearly obiter, for the actual question in issue in that case was whether the plaintiff took the risk of future negligence on the part of the defendant by accepting a lift in his motor-car when she knew that he was the worse for drink. If the judge meant that in all cases where the dangerous physical condition has already come into existence before the plaintiff’s intervention the plaintiff is liable to be defeated by a plea of volenti, I think that he went too far. So applied, the maxim would defeat the plaintiff’s claim in any rescue case, save possibly a case in which the rescuer has acted so instinctively, or so much on the impulse of the moment, that his conduct cannot be regarded as a conscious act of volition. But, as was said by Lord Justice Greer in Haynes v. Harwood, at page 159,

“It would be absurd to say that if a man deliberately incurs a risk he is entitled to less protection than if he acts on a sudden impulse without thinking whether he should do so or not.”

It seems to me that, when once it is determined that the act of the rescuer was the natural and probable consequence of the defendant’s wrongdoing, there is no longer any room for the application of the maxim volenti non fit injuria. It would certainly be a strange result if the law were held to penalise the courage of the rescuer by depriving him of any remedy. Lord Justice Greer in Haynes v. Harwood, was clearly of the view that the maxim cannot be applied to defeat the plaintiff’s claim in a rescue case. At page 157 of the report he quotes from an article by Professor Goodhart in the Cambridge Law Journal, volume V., at p. 196, as follows:

“The American rule is that the doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no such special duty.”

Lord Justice Greer goes on:

“In my judgment, that passage not only represents the law of the United States, but I think it also accurately represents the law of this country.”

It is by no means clear that the other two members of the court were prepared to go so far as Lord Justice Greer in stating the principle, and they appear to have based their judgments to a great extent on the fact that in the particular case the plaintiff was a police officer. But for my part I am content to accept Lord Justice Greer’s statement of the law, and to hold that the maxim volenti non fit injuria cannot be invoked in this case to defeat the plaintiff’s claim. In my judgment, the real question to be determined in a case such as the present is not whether the rescuer voluntarily accepted the risk of injury, but whether his injury was caused or contributed to by any failure on his part to take reasonable care for his own safety. This was the view expressed by Mr. Justice Swift in Brandon v. Osborne Garrett, [1924] 1 King’s Bench 548, at pages 554 and 555, and I think it is the right view.

(4) I pass, therefore, to the fourth and last question, which is raised by the defendants’ plea that the death of Dr. Baker was caused or contributed to by his own negligence. The burden of proof with regard to this allegation is upon the defendants, and in order to succeed I think they would have to show that the conduct of Dr. Baker was so foolhardy as to amount to a wholly unreasonable disregard for his own safety. Bearing in mind that danger invites rescue, the court should not be astute to accept criticism of the rescuer’s conduct from the wrongdoer who created the danger. Moreover, I think it should be remembered that it is fatally easy to be wise after the event. It is not enough that, when all the evidence has been sifted and all the facts ascertained in the calm and deliberate atmosphere of a court of law, the rescuer’s conduct can be shown ex post facto to have been misguided or foolhardy. He is entitled to be judged in the light of the situation as it appeared to him at the time, i.e., in a context of immediate and pressing emergency. Here Dr. Baker was faced with a situation in which two men were in danger of speedy death at the bottom of the well, unless something were done very quickly. He was a doctor, and he had been specially summoned to help. Any man of courage in his position would have felt impelled to act, even at the risk of his own safety. Time was pressing; immediate action was necessary if the men in danger were to be helped; there was virtually no opportunity for reflection, or for estimating the risks involved in an act of rescue. If Dr. Baker in such circumstances had instinctively gone straight down the well, without stopping to take any precautions at all, it would, I think, have been difficult enough to criticise him. But in point of fact he did take the very wise precaution of securing himself with a rope, whereby those on the surface could pull him up if he himself were overcome. The immediate cause of his death was the sheer mischance of the rope becoming caught on some obstruction, so as to make it impossible for those on the surface to pull him to safety. I do not think that, having regard to the emergency in which he was acting, he is to be blamed for not foreseeing and guarding against the possibility of such a mischance. On the contrary, I entirely agree with the view expressed by the judge that the defendants, whose negligence brought about the danger, must accept the risk of mischances of this kind. In all the circumstances, I find it impossible to accept the contention that Dr. Baker was guilty of any negligence either causing or contributing to his death.

For these reasons I am of opinion that the appeal in Dr. Baker’s case must also be dismissed.

The Appeal dismissed with costs in the case of the executors of Dr. Baker, and in the case of Mrs. Ward the appeal was dismissed with costs with an order for taxation under the Legal Aid and Advice Act. No order for costs in connection with the cross-notice of appeal or the supplementary notice of appeal.