Baker v Willoughby
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Guest,Viscount Dilhorne,Lord Donovan,Lord Pearson |
| Judgment Date | 26 November 1969 |
| Judgment citation (vLex) | [1969] UKHL J1126-1 |
| Date | 26 November 1969 |
| Court | House of Lords |
[1969] UKHL J1126-1
House of Lords
Lord Reid
Lord Guest
Viscount Dilhorne
Lord Donovan
Lord Pearson
Upon Report from the Appellate Committee, to whom was referred the Cause Baker (A.P.) against Willoughby, that the Committee had heard Counsel, as well on Monday the 30th day of June last, as on Tuesday the 1st and Wednesday the 2d, days of July last, upon the Petition and Appeal of George Robert Baker (Assisted Person), of 3 Elmsleigh Road, Wandsworth, S.W.18, in the County of Greater London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 10th of December, 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Arthur George Willoughby, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 10th day of December 1969, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Donaldson, of the 11th day of March 1968, thereby Varied, be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Costs incurred by the said Appellant in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellant was knocked down by the Respondent's car about the middle of a straight road crossing Mitcham Common. The road is 33 feet wide at this point and there was a 40 m.p.h. limit in operation. There was not much traffic, the time being Saturday morning. The trial judge held both parties to blame and apportioned 75 per cent. liability to the Respondent. The Court of Appeal altered this and held each 50 per cent. liable. The first question in the case is whether the Court of Appeal were right in so doing. The Appellant had been travelling in a van with another man when it ran out of petrol. The other man crossed the road to get a lift from a passing car to go to fetch petrol. Then he found he had no money and called to the Appellant to give him some. The Appellant was standing on the kerb behind the van and the accident occurred when he was crossing the road for this purpose. Before he left the kerb he looked to his right and only saw one car and he did not look again. When he reached the centre of the road he looked to his left. It was at this point that he was struck by the Respondent's car which he had not seen and which had overtaken the car which he saw. The trial judge held that he was walking and not running across the road. He held that the Appellant was negligent in not seeing that more than one car was approaching, in not waiting until they had passed and I think he was also negligent in not looking to his right again. The learned judge held that the Respondent was driving at an excessive speed or failing to keep a proper look out or both. He rejected the Respondent's evidence that the Appellant rushed across the road when the car was only some ten yards away.
The Court of Appeal recognised that the trial judge's assessment ought not to be varied unless "some error in the judge's approach is clearly discernible". But they appear to have thought it impossible to differentiate when both parties had a clear view of each other for 200 yards prior to impact and neither did anything about it. I am unable to agree. There are two elements in an assessment of liability, causation and blameworthiness. I need not consider whether in such circumstances the causative factors must necessarily be equal, because in my view there is not even a presumption to that effect as regards blameworthiness.
A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways though he may have to observe over a wide angle ahead: and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous. And it sometimes happens, though I do not say in this case, that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian. And in the present case I can see no reason to disagree with the trial judge's assessment. I would therefore restore the trial judge on this issue.
The second question is more difficult. It relates to the proper measure of damages. The car accident occurred on 12th September, 1964. The trial took place on 26th February, 1968. But meanwhile on 29th November, 1967, the Appellant had sustained a further injury and the question is whether or to what extent the damages which would otherwise have been awarded in respect of the car accident must be reduced by reason of the occurrence of this second injury.
There is no doubt that it is proper to lead evidence at the trial as to any events or developments between the date of the accident and the date of the trial which are relevant for the proper assessment of damages. The plaintiff may have died ( Williamson v. Thornycroft [1940] 2 K.B. 658): or the needs of the widow ( Curwen v. James [1963] 1 W.L.R. 748) or of the children ( Mead v. Clarke Chapman & Co. [1956] 1 W.L.R. 76) may have become less because of her remarriage. And it is always proper to take account of developments with regard to the injuries which were caused by the defendant's tort: those developments may shew that any assessment of damages that might have been made shortly after the accident can now be seen to be either too small or too large. The question here is how far it is proper to take into account the effects of a second injury which was in no way connected with the first.
As a result of the car accident the Appellant sustained fairly severe injury to his left leg and ankle, with the result that his ankle was stiff and his condition might get worse. So he suffered pain, loss of such amenities of life as depend on ability to move freely and a certain loss of earning capacity. The trial judge did not deal with these matters separately. He assessed the whole damage at £1,600 and making allowance for the Appellant's contributory negligence awarded £1,200 with minor special damage.
After the accident the Appellant tried various kinds of work, finding some too heavy by reason of his partial incapacity. In November 1967 he was engaged in sorting scrap metal and while he was alone one day two men came in, demanded money, and, when they did not get it, one of them shot at him. The shot inflicted such serious injuries to his already damaged leg that it had to be amputated. Apparently he made a fairly good recovery but his disability is now rather greater than it would have been if he had not suffered this second injury. He now has an artificial limb whereas he would have had a stiff leg.
The Appellant argues that the loss which he suffered from the car accident has not been diminished by his second injury. He still suffers the same kind of loss of the amenities of life and he still suffers from reduced capacity to earn though these may have been to some extent increased. And he will still suffer these losses for as long as he would have done because it is not said that the second injury curtailed his expectation of life.
The Respondent on the other hand argues that the second injury removed the very limb from which the earlier disability had stemmed, and that therefore no loss suffered thereafter can be attributed to the Respondent's negligence. He says that the second injury submerged or obliterated the effect of the first and that all loss thereafter must be attributed to the second injury. The trial judge rejected this argument which he said was more ingenious than attractive. But it was accepted by the Court of Appeal.
The Respondent's argument was succinctly put to your Lordships by his counsel. He could not run before the second injury: he cannot run now. But the cause is now quite different. The former cause was an injured leg but now he has no leg and the former cause can no longer operate. His counsel was inclined to agree that if the first injury had caused some neurosis or other mental disability, that disability might be regarded as still flowing from the first accident: even if it had been increased by the second accident the Respondent might still have to pay for that part which he caused. I agree with that and I think that any distinction between a neurosis and a physical injury depends on a wrong view of what is the proper subject for compensation. A man is not compensated for the physical...
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