Jobling v Associated Dairies Ltd

JurisdictionEngland & Wales
JudgeLord Wilberforce,Lord Edmund-Davies,Lord Russell of Killowen,Lord Keith of Kinkel,Lord Bridge of Harwich
Judgment Date25 June 1981
Judgment citation (vLex)[1981] UKHL J0625-1
Date25 June 1981
CourtHouse of Lords

[1981] UKHL J0625-1

House of Lords

Lord Wilberforce

Lord Edmund-Davies

Lord Russell of Killowen

Lord Keith of Kinkel

Lord Bridge of Harwich

Jobling (A.P.)
Associated Dairies Limited
Lord Wilberforce

My Lords,


The question raised by this appeal is whether in assessing damages for personal injury in respect of loss of earnings, account should be taken of a condition of illness supervening after the relevant accident but before the trial of the action, which illness gives rise to a greater degree of incapacity than that caused by the accident.


The chronology is as follows:


In January 1973 the appellant slipped at his place of work and sustained injury to his back. The respondents were held liable in damages in respect of this injury. In 1975 the appellant had a fall which aggravated his condition which the judge held was referrable to the injury of 1973. He has not worked since this event. By 1976 his condition was such that by reason of his back injury he was only fit for sedentary work. In 1976, however, there supervened spondylotic myelopathy, which affected the appellant's neck. By the end of 1976 this had rendered him totally unfit for work.


The judge at the trial on 26th March 1979 awarded sums in respect of special damages and general damages for pain, suffering and loss of amenities: the figure for the latter was reduced by the Court of Appeal. No question now arises as regards these items. The figure now in dispute relates to loss of earnings�from the date of total incapacity to the date of the trial and for the future from the date of trial. This loss the judge fixed at £6,825 representing a sum of £13,650 arrived at by using a multiplier, and dividing this by 2 on the basis of a 50 per cent loss of earning capacity. The Court of Appeal set this figure aside on the basis that the appellant was made totally unfit for work by the supervening myelopathy. They supported this decision by an impressive judgment delivered by Ackner L.J.


The evidence as to myelopathy was provided by agreed medical reports. No doctor was called at the trial. An agreed joint report by a consultant neurologist and a surgeon, dated 5th March 1979, stated:

"(4) At the date of the relevant accident (1973) there was ( sic) no discernible signs or symptoms of myelopathy.

(5) The effect of myelopathy has of itself been such as to render the plaintiff totally unfit to work."


The finding (4) has been accepted as establishing that the myelopathy was not a condition existing, but dormant, at the date of the original injury: it was a disease supervening after that event. If it had been dormant but existing it is not disputed that it would have had to be taken into account in the actual condition found to exist at the trial. But the appellant submits that a different result follows if the origination of the disease takes place after the accident, i.e. after the tortious act which gives rise to the claim. At the very first sight this distinction is unattractive, if only for the (to me compelling) reason that to accept it places in an impossible position both potential medical witnesses and the judge who has to value their evidence.


In an attempt to solve the present case, and similar cases of successive causes of incapacity according to some legal principle, a number of arguments have been invoked:


1. Causation arguments. The unsatisfactory character of these is demonstrated by the case of Baker v. Willoughby [1970] A.C. 467. I think that it can now be seen that Lord Reid's theory of concurrent causes even if workable on the particular facts of Baker v. Willoughby (where successive injuries were sustained by the same limb) is as a general solution not supported by the authority he invokes ( Harwood v. Wyken Colliery Co. [1913] 2 K.B. 158) nor workable in other cases. I shall not enlarge upon this point in view of its more than sufficient treatment in other opinions.


2. The "vicissitudes" argument. This is that since, according to accepted doctrine, allowance�and if necessary some discount�has to be made in assessing loss of future earnings for the normal contingencies of life, amongst which "illness" is normally enumerated, so, if one of these contingencies becomes actual before the date of trial, this actuality must be taken into account. Reliance is here placed on the apophthegm "the court should not speculate when it knows". This argument has a good deal of attraction. But it has its difficulties: it raises at once the question whether a discount is to be made on account of all possible "vicissitudes", or only on account of "non culpable" vicissitudes (i.e. such that if they occur there will be no cause of action against anyone, the theory being that the prospect of being injured by a tort is not a normally foreseeable vicissitude) or only on account of "culpable" vicissitudes (such as per contra). And if this distinction is to be made how is the court to act when a discounted vicissitude happens before trial? Must it attempt to decide whether there was culpability or not? And how is it to do this if, as is likely, the alleged culprit is not before it?


This actual distinction between "culpable" and "non culpable" events was made, with supporting argument, in the Alberta case of Penner v. Mitchell [1978] 5 W.W.R. 328. One may add to it the rider that, as pointed out by Dickson J. in the Supreme Court of Canada, there are in modern society many public and private schemes which cushion the individual against adverse circumstances ( Andrews v. Grand & Toy Alberta Ltd. [1978] 1 W.W.R. 577, 596/7). One then has to ask whether a discount should be made in respect of (a) such cases or (b) cases where there is no such cushion? There is indeed in the "vicissitude" argument some degree of circularity, since a discount in respect of possible events would only be fair if the actual event, discounted as possible, were to be taken into account when happening. But the whole question is whether it should be. One might just as well argue from what happens in "actual" cases to what should happen in discountable cases.


In spite of these difficulties, the "vicissitude" argument is capable in some, perhaps many cases, of providing a workable and reasonably just rule, and I would certainly not discountenance its use, either in the present case or in others.


The fact, however, is that to attempt a solution of these and similar problems, where there are successive causes of incapacity in some degree, upon classical lines ("the object of damages for tort is to place the plaintiff in as good a position as if, etc."�. "the defendant must compensate for the loss caused by his wrongful act�no more"�"the defendant must take the plaintiff as he finds him, etc.") is, in many cases no longer possible. We do not live in a world governed by the pure common law and its logical rules. We live in a mixed world where a man is protected against injury and misfortune by a whole web of rules and dispositions, with a number of timid legislative interventions. To attempt to compensate him upon the basis of selected rules without regard to the whole must lead either to logical inconsistencies, or to over�or under�compensation. As my noble and learned friend, Lord Edmund-Davies, has pointed out, no account was taken, in Baker v. Willoughby of the very real possibility that the plaintiff might obtain compensation from the Criminal Injuries Compensation Board. If he did in fact obtain this compensation he would, on the ultimate decision be over-compensated.


In the present, and in other industrial injury cases, there seems to me no justification for disregarding the fact that the injured man's employer is insured�indeed since 1972 compulsorily insured�against liability to his employees. The State has decided, in other words, on a spreading of risk. There seems to me no more justification for disregarding the fact that the plaintiff�presumably, we have not been told otherwise�is entitled to sickness and invalidity benefit in respect of his myelopathy the amount of which may depend on his contribution record, which in turn may have been affected by his accident. So we have no means of knowing whether the plaintiff would be over-compensated if he were, in addition, to receive the assessed damages from his employer, or whether he would be under-compensated if left to his benefit. It is not easy to accept a solution by which a partially incapacitated man becomes worse off in terms of damages and benefit through a greater degree of incapacity. Many other ingredients, of weight in either direction, may enter into individual cases. Without any satisfaction I draw from this the conclusion that no general, logical, or universally fair rules can be stated which will cover, in a manner consistent with justice, cases of supervening events whether due to tortious, partially tortious, non-culpable or wholly accidental events. The courts can only deal with each case as best they can in a manner so as to provide just and sufficient but not excessive compensation, taking all factors into account. I think that this is what Baker v. Willoughby did�and indeed that Lord Pearson reached his decision in this way: the rationalisation of the decision as to which I at least have doubts, need and should not be applied to other cases. In the present case the Court of Appeal reached the unanswerable conclusion that to apply Baker v. Willoughby to the facts of the present case would produce an unjust result, and I am willing to accept the corollary that justice, so far as it can be perceived, lies the other way and that the supervening myelopathy should not be disregarded. If rationalisation is needed, I am willing to accept the "vicissitudes" argument as the best available. I should be more firmly convinced of the merits of the conclusion if the...

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