The defendant company was employed to clean out a contaminated well and decided to use a pump powered by a petrol engine inside the well. Having noticed that the pump produced noxious fumes the director of the company instructed his workmen not to enter the well, but they did and were overcome by fumes. P, a doctor, went down in the well with a rope but was also overcome by fumes and died in the well as the two workmen did. CA allowed a claim (minus contributory negligence) by the workmen, and allowed a claim absolutely by P.
Wilmer LJ: “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 this case, P should have been within D’s contemplation and was therefore owed a duty of care, while there was no novus actus since it was always likely that P would enter the well as his profession demanded. Violenti did not apply here and there was no contributory negligence, since P did not face the danger “voluntarily” but as “humanity” prompted him.
Morris LJ: Knowledge of the danger is not enough. There has to be consent to the danger. For the defence to apply, it has to be shown that “the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, implicitly agreed to incur it”.