VARIATIONS ON AN ENIGMA
| Published date | 01 July 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01282.x |
| Date | 01 July 1970 |
VARIATIONS ON AN BNIGMA
IN
Baker
v.
Willoughby
l
the defendant, who was
driving
his
car
negligently, knocked down the plaintiff causing
him
severe injury
to
his
left
leg and ankle.
This
was in
1964.
With some diiilculty the
plaintiff found employment sorting scrap metal and, one day
in
1967
while
so
engaged, he
wtw
shot in the left leg by two men who
demanded money from
him.
As
a
result of this shooting the
plaintWs left leg had to be amputated and he had
to
wear
an
artificial limb. The plaintiff’s disability was somewhat greater than
it would have been
if
the second injury had not occurred.
The plaintiff’s action against the defendant came to
trial
in
1968.
The plaint* claimed that the damages payable to
him
in
respect of the
1964
accident should
in
no
way
be
decreased by the
fact of the second injury; the defendant argued that by reason of
the
1967
shooting and resulting amputation the damages should be
limited to those relevant to the
period
between the two injuries.
The House of Lords upheld the plaintiff’s claim and decided that
the second injury did not operate
to
cut down
the
damages
to
which
the plaintiff was entitled in respect of the first injury.
The two short articles which follow deal with the issues raised
in the judgment and related matters.
SUCCESSIVE CAUSES
OF
PERSONAL
INJURY
It seems hardly worth saying that, in order to impose
upon
a
person
liability in tort for an injury, his conduct must have contributed to
the occurrence of the injury; the need
to
satisfy the test of
causa
sine qua
Ron-to use the conventional terminology-appears self-
evident. Of
far
greater importance is the proposition that proof of
such causal connection
is
never enough to impose liability because
the law,
as
has been said since Bacon’s day, pays
no
regard to
remote causes but only
to
proximate causes, and
it
is of course
around the policy issue of what is remote and what is proximate
that the familiar discussions have raged. However, in the back-
ground of these discussions, there remains always the assumption
that
for
conduct
to
be
a
catma sine qua non
of injury
is
a
necessary,
if not
a
sdcient, condition of liability.
Yet the assumption has its dangers.
For
there are certain excep
tional situations in which the law may wish
to
regard
a
defendant
as
having caused
an
injury even though it would have occurred
without his participation. Thus, to take the simplest case, where
1
[1970]
2
W.L.R.
60;
[1969]
8
All
E.R.
15%
(H.L.).
878
JULY
1970
VARIATIONS
ON
AN
ENIGMA
879
the concurrent negligent acts of two persons combine
to
cause a
single injury which the act of either would have sutliced
to
bring
about by itself, neither actor should be able
to
escape liability
on
the strength of the argument that the injury would have been in-
flicted even in the absence of his negligent conduct
:
each should be
held liable for the total injury., Where, however, the two causes
are successive rather than concurrent, the situation becomes more
complex, because it gives rise to an issue of damages as
well
as an
issue of causation:
for
it is necessary to deal not only with the
imposition of liability but also with the degree
of
loss, and hence
the amount of damages, for which each actor is to
be
held liable.
This problem of successive causes is here examined in the context of
personal injury because of the measure of disagreement as to its
proper solution which has been revealed by the recent case of
Baker
v.
WiZZoughby,l
the facts of which are
set
out above.s
In
that case
it was accepted
on
all sides that the fact that the plaintB’s leg had
subsequently been amputated as
a
result
of
the shooting incident
could not be ignored, and there is indeed universal acceptance of the
sensible and realistic rule that courts must look at the position at
the time of their judgments and take account of any developments
there may have been since the damage was infli~ted.~ And although
it is true that, if the shooting had happened shortly after the trial,
the plaintiff would have got his damages in full and nothing could
have altered them, this
is
no
argument
for
ignoring events that have
already happened but merely shows up a limitation of a system
which makes a final lump sum award mandatory and allows neither
awards by way of periodical payments
nor
subsequent revision of
awards in the light of changed circumstances after judgment. The
difficult question, however, comes when it is asked whether the
shooting affects the extent of the defendant’s liability and the
measure of damages which the plaintiff may claim from
him.
For
the defendant had contended that he was liable only for the loss
sustained by the plaintiff up to the time
of
the shooting, because the
plaintiff
’s
present state of disablement was caused wholly by the
shooting which submerged and obliterated the consequences of the
initial injury. This contention was rejected by Donaldson
J.
at
first in~tance,~ accepted by the Court of Appeal,6 and again rejected
by the House
of
Lords.‘
1
Corey
v.
Hooener,
182
Mass.
250,
65
N.E.
69 (1902)
provides a leading
illustration
of
this.
Two
motorcyclists
eimultsneously paas the plaintiff’s horse,
the horse
bolts
and the pleintfi is injured; either motorcyclist
on
his
own
would
hsve
caused
thk
result.
a
The
plaintiff was guilty
of
contributory negligence which
coneequently
gave rise
to
an apportionment issue, but this aspect
of
the case is
not
relevant here.
4
Death
(Williams
v.
Thorneycroft
119401
8
E.B.
658
(C.A.))
and remarriage
(Cwwen
v.
James
[1963] 1
W.L.R.
748
(C.A.))
are perhepe the most telling
examples.
5
[1969] 1
Q.B.
38.
6
[l969] 2
W.L.R.
489
(C.A.).
[1970] 2
W.L.R.
50
(H.L.).
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