Baker v T E Hopkins & Son

An employer who creates a lethal workplace hazard remains responsible even if an employee enters it contrary to an instruction, where the instruction did not clearly explain the danger. The duty includes adopting a safe system of work and warning employees of hidden risks. An employer who negligently places people in peril must reasonably anticipate rescue, including intervention by a doctor. A foreseeable rescue is not a novus actus interveniens. Knowledge of danger is not voluntary assumption of risk: volenti non fit injuria does not defeat a rescue claim merely because the rescuer understood the risk. The issue is contributory negligence, judged in the emergency as it appeared at the time. A rescuer is not negligent unless the conduct showed a wholly unreasonable disregard for personal safety.

T. E. Hopkins & Son Ltd had undertaken to clean a contaminated well using a petrol-driven pump. Carbon monoxide accumulated in the unventilated well. Employees Ward and Wileman entered it and were overcome. Dr Baker attempted to rescue them and also died.

Claims by Ward’s representatives and Dr Baker’s executors under Lord Campbell’s Act and the Law Reform Act succeeded before Mr Justice Barry. The company appealed on liability, causation, the effect of Ward’s disobedience, the duty owed to Dr Baker, and the defences of volenti and contributory negligence. The central issue was whether the company’s negligence remained causative despite the employees’ conduct and Dr Baker’s foreseeable rescue attempt.

Both appeals were dismissed unanimously. The Court of Appeal upheld Mr Justice Barry’s findings in the claims arising from Ward’s and Dr Baker’s deaths.

1. Employer’s duty and Ward’s death. The company owed its employees a duty to take reasonable care for their safety and to provide a safe system of work. The petrol-driven pump created a lethal carbon-monoxide hazard. The company’s lack of knowledge and failure to obtain advice did not excuse the breach. A direction not to enter the well until Mr Hopkins arrived was insufficient because it did not clearly warn of the hidden and deadly danger. Ward’s disobedience did not eliminate causation. His presence in the well remained at least partly attributable to the company’s negligence.
2. Duty to the rescuer. Applying the neighbour principle in Donoghue v Stevenson [1932] Appeal Cases 562 and the rescue authorities, the company should have foreseen that someone might attempt to save employees placed in peril. Dr Baker, who had been summoned as a doctor, fell within the class of persons to whom a duty was owed. The reasoning in Haynes v Harwood [1935] 1 King's Bench Division 146, supported by Wagner v International Railway Co. (1921) 232 New York Reports 176 and Bourhill v Young [1943] Appeal Cases 92, was applied.
3. Causation and defences. A foreseeable rescue was not a novus actus interveniens. The company could not rely on volenti non fit injuria. Knowledge of risk did not establish free and voluntary agreement to assume it. Ormerod LJ treated the relevant observations in Dann v Hamilton [1939] 1 King's Bench Division 509 as obiter and too broad if applied to rescue cases. The proper question was whether Dr Baker failed to take reasonable care for his own safety.
4. Dr Baker’s conduct and apportionment. The rescuer had to be judged in the urgent circumstances as they appeared at the time. Dr Baker’s use of a rope was a reasonable precaution, and the rope’s becoming caught was a mischance for which the company had to accept responsibility. He was not contributorily negligent. Ward’s 10 per cent share of blame was not disturbed on appeal.

Costs were awarded against the company in both appeals, subject to the stated legal-aid taxation order in Ward’s case. No order was made concerning the withdrawn cross-notice and supplementary notice.

• Court of Appeal ([1959] EWCA Civ 4): appeals from Mr Justice Barry’s decisions allowing claims arising from the deaths of Ward and Dr Baker. Both appeals were dismissed with costs.