Cutler v Vauxhall Motors Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE KARMINSKI |
| Judgment Date | 04 March 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0304-3 |
| Date | 04 March 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J0304-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Donaldson - Manchester)
Lord Justice Russell
Lord Justice Edmund Davies
Lord Justice Karminski
Mr. GEORGE CARMAN (instructed by Mr. W. H. Thompson, Manchester) appeared on behalf of the Appellant (Plaintiff).
Mr. KICHAEL MORLAND (instructed by Messrs. Percy Hughes & Roberts Birkenhead) appeared on behalf of the Respondents (Defendants)
This is a curious case. The relevant facts may be briefly stated. The plaintiff, when at work in November, 1965, for the defendants, his employers, Vauxhall Motors Ltd., used an unstable box to stand on, and as a result of its instability he slipped and sustained a slight graze of his right ankle, which required daily dressings for a fortnight but apparently then had no other effect. The defendants admitted liability in that they should have provided steps or some other stable plat form for his work. For the graze and its attendant discomfort and inconvenience the judge gave £10 damages, which is appropriate.
Some time later the plaintiff had pain or discomfort in his right leg higher up and ultimately in June, 1966, saw a specialist. It emerged that he had for some time, unknown to himself, suffered from a condition of varicosity in the veins of his legs, a condition antecedent to the accident. Being in this condition the graze had set up an ulcer. I do not think precision in medical terms is needed for consideration of this case, but the situation in summary was that in July, 1966, due to the ulcer due to the graze the plaintiff's varicose condition had reached a stage when the specialist recommended operation to cure that condition. In September, 1966, he was operated on successfully, the operation not unnaturally being performed not only on his right leg but also on the other. He suffered of course pain and discomfort from the operation: it resulted in some permanent scars on his legs, though these took the place of unsightly lumps due to varicosity: and he was off work wholly or partially, due to the operation, to an extent that involved a net loss of earnings of an agreed amount of £173. This loss was suffered well before the trial, and was claimed as special damages. The judge awarded £10 damages, as already mentioned, but nothing by way of special damages or further general damages, with a consequent order as to costs adverse to the plaintiff. Thus simply stated the result may seem very startling. The plaintiff did in fact lose £173 in earnings because of the operation made necessary by the ulcer caused bythe accident for which the defendants were responsible. The plaintiff did in fact suffer the operation with its anxieties, pains and discomfort in September, 1966, because of the ulcer caused by the accident. The fact that he was vulnerable to such an ulcer because of his existing condition of varicosity does no more by itself to diminish the defendants' liability in damages than does an eggshell skull in other cases.
But the judge was faced with evidence that if the accident had never happened the pre-existing condition of varicosity of the plaintiff was such that in all probability the plaintiff's condition would in 1970 or 1971 have called for the very operation that he underwent in September, 1966. Accordingly he cancelled out the pain and discomfort in 1966 as a mere anticipation of the inevitable, and similarly the net loss of earnings. Before this Court it is asserted by the plaintiff: (a) that as to the operation and its attendant pain and discomfort straight cancellation is wrong in law, though maybe a substantial offset should be made as a reflection of the obverse of the eggshell skull cases, the guilty defendant being entitled also in mitigation of damages to call in aid the principle that he takes the plaintiff in his existing condition: and (b) that as to the special dam ages - loss of earnings - it is contrary to established law and wrong in principle to make an offset at all, the loss of earnings having been indubitably suffered.
The plaintiff was in steady employment with the defendants, aged 41 at the time of the accident. When advised to have the operation on his legs he acted reasonably and agreed. These were factors in considering whether in all probability without the accident he would have anyway in due course suffered the pain and discomfort of the operation and a similar loss of earnings, with the result (it was argued) that the accident did no more than accelerate inevitable damage, or (to put it another way) while causing the detriment and damage simultaneously conferred the benefit of saving the plaintiff from similar detriment and dam age in 1970 or 1971.
In argument for the plaintiff it was contended (correctly) under several heads that damage similar to that caused by the accident was not inevitable. Suppose him to die before the time when in due course he would have been ripe for the operation any way, there could be no answer to a claim by his personal representative for £173. Similarly the future operation might have been made unnecessary by advances in medical science. The plaintiff might, it was said, not then have agreed to the operation. Sofar as loss of earnings is concerned, it was pointed out that in 1970 or 1971 the plaintiff might not lose any earnings, or might not lose the same amount by the operation, because he might at the time of the operation be on strike, or unemployed, or on holiday, or a man of leisure having won a football pool, or a self-employed shopkeeper with a wife to run the business in his absence. number of points of this nature were put forward to show either that the operation was not inevitable in 1970 or 1971, or that it would not inevitably result in loss of earnings or in loss of earnings of the same extent. But the fact remained that there was a high degree of probability: (a) that the operation would have taken place in any event in 1970 or 1971, (b) that it would have brought in its train similar loss of earnings.
Does this high degree of probability justify the judge's view that no damages should be awarded either for the loss of earnings proved, or for the pain and discomfort involved in the operation?
For the plaintiff it was pointed out, correctly so far as I am aware, that there is no case in which ascertained special damage caused by the defendant's default has ever been denied to a plaintiff, or reduced, on the ground of a probability that it would have been suffered in due course by the plaintiff in any event. Special damages, it was said, were special in this sense also. Though civil liability was in principle based upon a balance of probabilities, to offset wholly a certainty nothing less than certainty could suffice. For the defendants it was said that there is no magic in special damages, which are only that part ofthe total damages (a) suffered up to the date of trial and (b) capable of quantification by calculation rather than estimation (though, as in Rouse v. Port of London Authority, (1953 2 Lloyd's List Reports 179), there may be an element of estimation in the calculation of pre-trial loss of earnings: consequently, it was said, there is no reason in principle why there should not be offset the probability (lure of high degree) that the accident has benefited the plaintiff by avoiding a similar loss in the near future: and the principle is clear that a defendant, whether guilty of a breach of contract or of tort, may take advantage of a particular condition of the plaintiff and of a benefit to the plaintiff that the wrong done brings in its train, unless the benefit be collateral or independent such as insurance or the benevolence of a third party.
A good example of the principle that a tortious defendant may, in resisting a claim for damages, or the full amount thereof, rely upon an already damaged condition of the plaintiff is to be found in ( Performance Cars Ltd. v. Abraham 1962 1 Queen's Bench 33, in the Court of Appeal). Hot only must the tortfeasor take the plaintiff as he finds him to the disadvantage of the tort feasor: he may also take him as he is to the advantage of the tort feasor in an appropriate case. In that case damage to a car would have required complete recellulosing: but due to a previous accident that was already necessary.
A good example of a case where a countervailing benefit produced by the tort was not to be set against damages is ( Shearman v. Folland 1950 2 King's Bench 43, in the Court of Appeal). In that case a woman who normally lived in hotels at seven guineas a week claimed as damages twenty five guineas a week nursing home fees: this Court refused to deduct seven guineas a week as hotel expenses saved, because the precise style in which the plaintiff might but for the accident have lived was a collateral matter, not in pari materia: the Court would have deducted the proportion of the twenty five guineas...
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