Case analysis



AUTHOR: Aditya Krishna Gupta, a student of Guru Gobind Singh Indraprastha University, Dwarka Sector-14, New Delhi

Vital Information

o   Court: Court of Appeal of England and Wales

o   Decided: 24th July, 1959

o   Citation: [1959] 1 WLR 966

o   Judge(s) sitting: Lord Justice Morris, Lord Justice Ormerod & Lord Justice Willmer

o   Keywords: Negligence, Duty to Rescue, Volenti Non-Injuria

The undisputed factual matrix of the concerned case is encapsulated below:

The unfortunate event occurred on Wednesday, 17th August, 1955 which subsequently led to the advent of the litigation. The company run by Mr. Hopkins has been engaged to undertake the task of maintaining and cleaning out a well at Tadser Farm, Ticknell, in the country of Derby, which had been contaminated. The well in question was about 50 feet deep and 6 feet wide. Mr. Hopkins employed Mr. Ward and Mr. Wileman for the specific job.

Since the job was hazardous and subject to the safety of the workers, Mr. Hopkins decided to examine the environment of the well. For this purpose, he lit a candle and placed it inside the well intending to check the level of oxygen there. The candle was pulled out after a reasonable time and the candle was still lighted. The evidence showed that there was sufficient percentage of oxygen present in the well.  Bearing in mind the above action, the well was believed to be apt for working in, and succeeding this, the machines which were in the form of wooden platforms for carrying out the job were brought and placed inside the well. The machine was fitted with a motor pump engine which operated on petrol. the petrol tank of the engine contained sufficient petrol to empower the motor pump to run for about six hours, and Mr. Hopkins considered that such a period would be sufficient to enable the pump to clear the well. It is pertinent to mention that the exhaust of the petrol-driven pump engine would contain carbon monoxide which is an odorless gas and could gradually build up a most dangerous concentration of lethal gas. The lighted candle mentioned above is quite useless for the effective detection of carbon monoxide. Mr. Hopkins failed to take into consideration the inexpedient features of the system and employed it without having full knowledge about it and not taking cautious steps. In addition to this negligent act, Mr. Hopkins also failed to take advice from any experts concerning the dangers of the machine. Further, the engine was left switched on unsupervised inside the well for a couple of hours before it stopped functioning out of its own accord. The working of the engine resulted in a kind of blue haze in the well and there was a smell of fumes. Mr. Hopkins alarmed the workers not to enter the well before the fumes dispersed.

The following morning the workers were again informed about the situation but completely ignorant of the fact both the workers chose to go to the work site. Mr. Ward first descended the well and due to the perilous fumes, there he called out Mr. Baker for helping him out. By the time, Dr. Baker reached the site, both the workers were demised as a consequence of exposure to the deadly fumes. But Dr. Baker motivated by the finest instincts of mankind, proceeded to go down. Unfortunately, the doctor met with the same fate that Mr. Wald and Mr. Wileman.

Therefore, claims were put before the Hon’ble Court against Mt. Hopkins company T.E. Hopkins & Son Ltd. concerning the deaths of Ward and Dr. Baker. The claims in the discussion were brought under Lord Campbell’s Act and the Law Reform Act.

The short questions/issues which were posed before the Hon’ble Court were:

1.    Was there any opportunity for the company to plead the defense of Volenti non-fit-injuria?

2.    Was the employees’ decision to ignore the manager’s warning a novus actus interveniens?

3.    Was the doctor’s decision to try to save the employees a novus actus interveniens?

4.    Did the defense of contributory negligence apply to the doctor?   

The arguments laid down before the Hon’ble Court are as follows:

1.    The learned counsel appearing on behalf of the plaintiff contented before the esteemed Bench that there was grave negligence on the part of the defendant(s) concerning the performance of their duty by undertaking insensible ways to reckon the actual environment of the well in question. The act of the defendants was extraneous from top to bottom as it involved mere guesses about the literal condition of the work site by relying on a candle flame. It was alleged by the counsel that the defendant materially erred in scrutinizing the working environment and the same was wholly irresponsible while probing the operation of the machines placed inside the well. The lethal fumes that emanated due to the irregular functioning of the petrol-operated pump could have been avoided if the defendant had been careful in his inspection of the machinery.

It was vehemently submitted by the counsels before the Hon’ble Court that the opportunity of pleading the defense of Volenti non-fit-injuria should not be made available to the defendants. While spelling the imperatives of the matter, the counsel for the plaintiff highlighted the point that mere knowledge of the risk without consent to the particular risk cannot be made a ground for allowing the counsel a cover under the legal maxim at issue. Significantly, the presence of knowledge could not be considered as an implied consent of the plaintiffs to bear that danger.

Taking into due consideration the most significant part of the argument advanced by the counsel in question, the instincts of humanity, professional ethics, and duties of the plaintiff were brought under the limelight before the respected Bench. It was asserted that the decision of the plaintiff to save the workers was based on his professional ethics and the same was completely unfamiliar with the extent of the damage and danger. Therefore, it was the sole responsibility of the defendant in this matter to undertake due care concerning the cited matrix.

2.    The learned counsel appearing on behalf of the defendants in the questioned matter brought before the Hon’ble Court relied upon the fact that due and reasonable care was taken by the defendants. It was strongly restated by the respected counsels that the action of the defendant involving the test of a candle flame to analyze the ambiance of the well was an apt step as the same would have been done by a man with ordinary prudence. It was further submitted that clear instructions were given by the defendant to Mr. Wileman and Mr. Wald refraining them from going inside the well. The above-said ground was highlighted to corroborate the pleadings of Volenti non-fit injuria.

Furthermore, the defendant also argued that Mr. Baker’s and the employer’s acts should be taken into consideration as novus actus interveniens i.e., a new intervening act that erodes the liability of the defendant. This is on the basis that the employees acted on their own accord and ignored the instructions of the employer, Mr. Hopkins. Akin to this, Dr. Baker’s attempt to go down the well to rescue the employees was not reasonably foreseeable but was also a clear act on his part to be consenting to the risk and the consequence of his act by proceeding to rescue the employees even after being conversant of the conditions inside the well. Therefore, the defendant cannot be held liable for these acts which were beyond his control and discretion.

The counsel vehemently submitted that disregard for her safety and reasonable foresight on the part of the plaintiff resulting in his decision to go inside the well despite the toxic fumes also amounts to contributory negligence in this case.

Because of the above arguments, facts, and circumstances the Hon’ble Court gave the following judgment:

The Court of Appeals of England and Wales held that the defendant was negligent in his actions and delivered the verdict in favor of the plaintiff, Dr. Baker.  

The Court after hearing contentions of both sides concluded that neither the acts of deceased employees nor the doctor were novus interveniens i.e., a new intervening act which may discharge the defendant of liability in this case. In circumstances, where the situation is extremely dangerous a mere warning to the public may not be sufficient to discharge the duty of the defendant. In this case, a mere warning to the employees by the employer was insufficient and any proper warning should be inclusive of proper and complete knowledge to make others understand the extent of danger that resides and their consequences. Hence, where the warning is inadequate then actions of the third party may not constitute novus actus interveniens, and the defendant or the wrong-doer is not discharged of his liability. In this particular case, the warning was vague and inadequate, hence the defendant cannot claim novus actus. Therefore, neither the actions of the employees nor the doctor were novus actus interveniens.

In regards to the claim that the act of the plaintiff constituted contributory negligence, the court held that the act of the individuals involved in the rescue of others would not amount to contributory negligence unless the individual was completely ignorant of his safety.

In this instance, the plaintiff, Dr. Baker has taken precautions for his safety before going down the well. The court also accepted the claim of the plaintiff that the consent to bear the risk was not present. For this purpose, they followed the principle as laid down in the case of Smith v. Baker, (1891) A.C.325. As in the prior case, herein the defendant was also aware of some danger existing but he did not give his free consent to such danger or harm and hence his actions cannot be interpreted as voluntarily accepting the risk.

Thus, on these grounds the Hon’ble Court decided the matter in favor of the plaintiff, Dr. Baker. 

Contemporary analysis:

The concerned legal maxim deals with those cases of the Law of Tort where the plaintiff has himself given the consent to undergo an injury or encounter danger or harm. Consent is the essence of this particular legal maxim and such consent must be free from any sort of fraud, coercion, undue influence, mistake, etc. For the applicability of this legal maxim, the consent needs to be free. Moreover, the consent could be in either form, express or implied.

Therefore, when we talk about the car parking lots implied consent i.e., the slip mentions that all the logistics and goods in the car are at the own risk of the owner and the car parking firm will not be liable for any impending loss that may occur.

The case of Dr. Baker v. T.E. Hopkins sets a precedent that becomes crucial regarding modern rescue cases. The issues involved in the case are of relevance as they provide guidelines for the courts which can be referred to in present cases involving rescue attempts and determine the liability of the wrong-doer.

Moreover, the court’s verdict over contributory negligence of the plaintiff only being held when there is arrant disregard for one’s safety to be unconscionable renders immunity to plaintiffs who are often deprived of damages and compensation because there was negligence on their part to take precautions. This becomes eminent regarding motor vehicle accidents which are quite prevalent in our country.

Therefore, the case of Dr. Baker vs T.E. Hopkins is crucial for understanding the rationale behind the exception of rescue cases under Volenti non-fir injuria and the circumstances under which liability can be attributed to the defendant.

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