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Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal

Mr Ward and Mr Wileman were employed by the defendant, Hopkins. They had been called to clean out a well. The well was 50ft deep and 6ft wide. Hopkins tested the atmosphere in the well by putting a lighted candle down the well. The candle returned still lighted and thus he concluded the atmosphere was fine. He and Ward then took a petrol motored pump down the well started it up and left the well leaving the engine running on its own. The motor ran for 1 1/2 hours before it stopped of its own accord. Before leaving the site Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes have cleared. The following morning Hopkins again told the two not to go down the well until he had arrived on the site. In breach of these orders Mr. Ward went down the well and was overcome by fumes. Mr Wileman called for assistance and went down the well after him. The claimant, Dr Baker, then arrived on the scene. He too went into the well to seek to rescue the two. Unfortunately all three died of carbon monoxide poisoning. The defendant contended that the act of the doctor acted as a novus actus interveniens and sought to invoke volenti non fit injuria.

Held:

The doctors actions were not a novus actus interveniens. It was foreseeable that if a defendant by his negligence places another in peril that someone may come to his rescue and the doctor's actions were not unreasonable in the circumstances. The Claimant's action was not defeated by volenti non fit injuria. He was and as such his actions did not count as freely and voluntarily accepting the risk.
 
Morris LJ:
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.
 
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