Spencer v Wincanton Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Longmore,Lord Justice Aikens |
| Judgment Date | 21 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1404 |
| Docket Number | Case No: B3/2009/0882 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2009 |
[2009] EWCA Civ 1404
Lord Justice Sedley
Lord Justice Longmore
Lord Justice Aikens
Case No: B3/2009/0882
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
HHJ Bullimore
DN301460
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Dominic Nolan QC (instructed by Dla Piper UK Ltd) for the Appellant
Mr John Mcneil and Mr Andrew Bridgeman (instructed by Keeble Hawson) for the Respondent
Hearing date: Thursday 26 November 2009
If an unwise or risky act on the part of the claimant in an ongoing personal injuries action results in an aggravation of the injuries for which the defendant is liable, by what test does the court decide whether the damages are to include the aggravated element of the injury in full, in part or at all? It has been common ground before us that liability ceases at the point where the chain of causation is interrupted; the dispute is as to what kind of act on the claimant's part constitutes such an interruption.
Mr Spencer, a former RAF serviceman, was employed as a shunter-driver by the defendant enterprise. In March 2000 a collision with his stationary tractor unit caused by the momentary negligence of a fellow employee caused his right knee to strike a bolt on the steering column. The defendant's vicarious liability for the compensable consequences of this initially minor accident has never been in dispute.
From the accident, however, flowed an increasingly disastrous succession of disabilities. The knee remained unremittingly painful, keeping Mr Spencer off work until finally in June 2001 his employment had to be terminated. Nothing daunted, he found himself another job which would accommodate his handicap and which he still does. But the degree of pain was such that he eventually made an informed decision to undergo an above-knee amputation in February 2003. Liability for this, as a further consequence of the original injury, is also accepted.
Mr Spencer made a good recovery. He was fitted with a prosthesis, but this could not be worn in the car he bought with the help of an interim payment until the car was adapted. Meanwhile, however, he was able to drive it because it had an automatic transmission requiring only one good leg. Because he could not wear the prosthesis while driving, he would place it on the back seat; and since putting it on was cumbersome and involved loosening his trousers, he instead used a pair of sticks outside the car as a substitute for the wheelchair which he carried in the boot for use at work and at home.
On 14 October 2003, a week or so before the car was due to go in for conversion, Mr Spencer pulled into a Sainsbury's petrol station on his way to work. Rather than sound his horn to obtain help from an attendant he got out, using neither the prosthesis nor the sticks, got to the pump by steadying himself against his car and filled his tank. Returning to the driver's door, from where he was going to summon a cashier to take his payment, he caught his foot against a raised manhole cover and fell. The fall (he was a heavy man) ruptured his left quadriceps tendon and did lasting damage which has confined him to a wheelchair for good.
Liability not being in issue, the claim had proceeded to this point by negotiation. The defendants' insurers had taken the sensible view that, with a stoical claimant who was evidently determined to rehabilitate himself as far as he could, their best course lay in assisting him to do so and in not settling too soon. The claimant's advisers had correspondingly held off issuing a writ until 12 March 2003, only a few days short of the limitation period. Judgment was entered for damages to be assessed on 24 June 2004. Had the claim settled before the accident on the forecourt, it would have had to make some notional allowance for the possibility of further injury resulting from the instability caused by the amputation; but that would have been all. What the defendants now resist is a serious increase in the size of the claim arising from the eventuation of that possibility while the claim was still unresolved.
Their first step was to blame Sainsburys in Part 20 proceedings for the one-inch upstand in the forecourt surface and its role in Mr Spencer's further injury. Mr Spencer had initially done the same but had withdrawn the claim. At trial in the Sheffield County Court Judge Bullimore exonerated Sainsburys. They no longer feature – except indirectly—in the case. He went on to hold that the injury suffered by Mr Spencer on the forecourt formed part of the damage for which Wincanton were liable. But he reduced the consequent damages by one third to reflect Mr Spencer's fault in not seeing the upstand and in not using his sticks.
The judge gave Wincanton permission to appeal his decision on the extent of their liability to Mr Spencer. An application on the latter's behalf to cross-appeal the finding of contributory fault was refused on sight of the papers by Smith LJ and has not been renewed. It follows that, if the appeal succeeds, Mr Spencer will recover no damages attributable to the fall on the forecourt; if it fails, as much of the damages as are attributable to the fall on the forecourt will be reduced by one third.
Both here and below the foundation of the appellants' case, which has been cogently presented by Dominic Nolan QC, has been the decision of the House of Lords in McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621. As a result of an actionable injury at work the pursuer had developed an intermittent weakness of the left leg, which would give way without warning. While his claim was pending he went with his wife, his brother-in-law and his child to a Glasgow tenement flat approached by a steep stair with no handrail. On leaving, he went down the stairs with the child ahead of his wife and brother-in-law, and his leg gave way. With no handrail and no adult support, he found himself falling and so jumped, fracturing his right ankle badly as he landed.
For all material purposes the single reasoned speech is that of Lord Reid. (Lord Guest, in the only other full speech, considered the split-second decision to jump not to have been "reasonable human conduct".) The key passage (at 1623 E-I) is this:
"In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other nouvs actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the nouvs actus. It only leads to trouble that if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does he cannot hold the defender liable for the consequences.
So in my view the question here is whether the second accident was caused by the appellant doing something unreasonable."
The difficulty with which this formulation presents trial courts is that "unreasonable" is a protean adjective. Its nuances run from irrationality to simple incaution or unwisdom. It is helpful to locate its correct position on the scale of meanings by recalling that its purpose in this context is to determine the point at which the law regards a consequence as too remote.
The account of remoteness on which Mr Nolan founds is that described by Lord Rodger in Simmons v British Steel plc [2004] UKHL 20:
"These authorities suggest that, once liability is established, any question of remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid; Bourhill v Young [1943] AC 92, 101, per Lord Russell of Killowen; Allan v Barclay (1864) 2 M 873, 874, per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the...
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