Ellis v The Environment Agency
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith DBE,Hallett LJ,Lawrence Collins LJ,LORD JUSTICE MAY |
| Judgment Date | 17 October 2008 |
| Neutral Citation | [2008] EWCA Civ 136,[2008] EWCA Civ 1117 |
| Docket Number | Case No: B3/2007/2783 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2008 |
[2008] EWCA Civ 1117
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HASTINGS COUNTY COURT
HIS HONOUR JUDGE HOLLIS
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice May
Lady Justice Hallett and
Lord Justice Lawrence Collins
Case No: B3/2007/2783
HS101225
George Alliott (instructed by Messrs Adams & Remers) for the Appellant
Robert Leonard (instructed by Messrs Gaby Hardwicke) for the Respondent
Hearing dates: 30 th July 2008
Introduction
It is a commonplace that, if a passenger is injured in a collision between two motor vehicles when each driver's negligence was a material contributing cause of the collision and therefore the injury, the passenger can recover the full amount of his loss from either of the drivers, provided that he does not recover in total more than the full amount of the loss. The two drivers are left to sort out the appropriate contribution between each other under the Civil Liability (Contribution) Act 1978. This is a common illustration of how uncontentious law treats the necessary causation element of the tort of negligence. Causation can, however, sometimes gives rise to difficulties when it is suggested that the injury for which the claimant claims damages resulted from, as the defendant may contend, more than one cause operating cumulatively or consecutively. The defendant may then contend, as in the present case, that he should only be liable for a proportion of the claimant's loss apportioned to the cause for which he is liable. It may be noted in passing that, if one driver in the collision case is injured and claims damages against the other driver, the claimant driver's damages may be reduced for his own contributory negligence. But we are not concerned with contributory negligence in the present appeal.
Facts
The claimant, Christopher Ellis, was born on 26 th October 1967. He worked for the defendants, the Environment Agency, as a plant machinery driver. On 9 th June 1998, he had an accident in the course of his employment. He was preparing to drive a loading shovel close to the place at Pevensey Bay in East Sussex where William the Conqueror landed with his army in 1066. Mr Ellis needed to remove a protective shutter from the front of the machine. While he was doing this, a gust of wind caught the shutter so that he fell 7 or 8 feet to the ground. As a result he injured his back. In proceedings begun in June 2001, he claimed that this accident was caused by the negligence and breach of statutory duty of the defendants. The defendants by their defence admitted that if the accident had taken place in the manner negligence. They contended that Mr Ellis' own negligence had contributed to the accident. But HH Judge Hollis, in a judgment given in the Hastings County Court on 30 th March 2007, held that the defendants had not proved any contributory negligence on Mr Ellis' part. This appeal is brought against other parts of the judge's decision, but his rejection of the case of contributory negligence is not challenged.
An event which in part gives rise to problems with causation in this case happened on 30 th April 2000. On that day, Mr Ellis had a fall on his staircase at home because his back gave way. The main enduring injury from this fall was to his right knee, where there was a complete rupture of the anterior cruciate ligament and a tear of the medial meniscus. This required, among other things, an operation under general anaesthetic in March 2001. Mr Ellis remained in employment with the defendants until 2004, but did not work after March 2001. He has suffered continuing problems with his knee and other debilitating consequences, including bouts of depression.
Mr Ellis' case was that the April 2000 fall was a consequence of the June 1998 lumbar spine injury. The defendants by their defence denied this. They pleaded that in so far as the April 2000 fall was in any way related to Mr Ellis' back condition it was caused by accidents which Mr Ellis sustained after the June 1998 accident. They referred in particular to another accident which Mr Ellis had at work on 5 th May 1999, when he missed his footing on a ladder, after which he was off work for 5 months. The defence also refers to other incidents in 1999 which did not feature greatly in the causation debate other than as narrative. They do not affect the point of principle which this appeal raises. I understand that Mr Ellis brought a claim for the May 1999 accident which was struck out on a limitation issue. Thus any consequences of this accident are not the responsibility of the defendants.
The yet further complication is that upon orthopaedic examination Mr Ellis was shown to have had in 1998 a degree of undiagnosed and symptomless spinal degeneration to a greater extent than is usual in 30 year old men. This would have developed quite apart from the June 1998 accident, so that Mr Ellis would not have been able to undertake heavy work for his full working life. His case was that the June 1998 accident brought about symptoms in his back some 10 years before they would have occurred but for that accident. We are told that the judge in essence accepted this when he quantified Mr Ellis' damages on this reduced basis.
The judge's decision
In section D of his judgment, the judge considered the extent of damage for which the defendants should be responsible. He said that the central question was the extent to which the June 1998 accident caused Mr Ellis' present condition and the extent to which the April 2000 fall down the stairs was a consequence of the injury Mr Ellis received when he fell off the shovel. The judge noted that the knee injury from the April 2000 fall was that which had had the most serious effect. The judge's conclusion, in paragraph D(vi) of his judgment, included that there was
“… a continuum … of significant back problems … arising from the serious fall which constituted the 1998 accident … which ultimately led to the 2000 fall down the stairs, and that but for that accident the fall would not have happened.”
The judge thus rejected the defendants' case that the June 1998 accident had not been causative of the April 2000 fall. So far as it goes, there is no appeal against that finding. But the defendants say that there were other causes of the April 2000 fall as well.
The judge held that Mr Ellis was entitled to recover 90% of his loss. He directed himself (paragraph D(i) of the judgment) that Mr Ellis had to prove that but for the June 1998 accident the April 2000 fall would not have taken place and that there was a direct causative link between the two events. He found, in the passage in paragraph D(vi) to which I have already referred, that Mr Ellis had proved this. He further held (paragraph D(vii)) that it was axiomatic that a tortfeasor is only responsible for the consequences of the tortious act and that the compensation should be appropriately adjusted to take account of the medical evidence that but for the injury Mr Ellis would in any event have encountered lumbar problems after about 10 years and serious disability after 20 years. As I have said, the judge's quantification of the damage took account of this. But there was an intervening event, that is the May 1999 accident, which was not the defendants' responsibility and which was, on Mr Staniforth's evidence, a further contributing event in the deterioration of Mr Ellis' lumbar spine, and hence a “contributory intervening factor” in his fall down the stairs in April 2000. On the basis of Mr Staniforth's assessment, the judge believed it would be right to discount the total award by 10% to take into account that “further contributory factor”.
The amount which, after a further quantum hearing, the judge by order dated 19 th November 2007 awarded to Mr Ellis was £290,404 plus interest. This represented 90% of the full award. The order is expressed to be made upon the parties having reached agreement, on the basis of the judge's findings at the trial and the further hearing, that the damages were properly calculated as at 25 th July 2007. We were told that elements of the £290,404 for which judgment was given took account of the judge's finding in paragraph E(iii) of his March 2007 judgment that Mr Ellis, with his wife's support, should be expected to be in some form of employment by 12 months from the final disposal of the case.
One ground of cross-appeal
The relevance of this last point is that Mr Ellis, by Respondent's Notice, seeks to have elements of the quantified damages increased because this appeal has deferred the final disposal of the case. It is convenient to deal with this point at this stage. Mr Leonard submits that it is difficult to imagine anything less conducive to the settlement of Mr Ellis' condition in preparation for his return to the job market than having the appeal hanging over him. The damages were eventually agreed, as the order recites, on the basis of the judge's findings as at 25 th July 2007. The final disposal of the case should be taken, as thing have turned out, as the final disposal of this appeal. The 12 months to which the judge referred should therefore run from 29 th July 2008 (when this court announced in anticipation what the main result of this appeal would be) in substitution for 25 th July 2007.
There is, in my view, no proper basis for this contention. Mr Ellis does not, so it appears, seek to appeal any decision which the judge made which this court might hold to be wrong, because the relevant elements of...
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