When looking at the liability of Harry we need to apply the situation to the principles established. Firstly, the ‘but-for’ test is applied. Would the harm have occurred ‘but-for’ the accident at work? Under this test the claimant must prove the existence of a causal link on the balance of probabilities. In the defence of Harry he could argue that the harm would have occurred since Gerry ends up being knocked down by Ingrid and his leg needs to be amputated. This would be the case in a strict application of the ‘but-for’ test, however this is argued to lead to injustice since the claimant may not recover full compensation where they fall between two defendants in a strict application of the test. This is because Ingrid would only be liable for the additional damage to the leg of Gerry and therefore he could only recover compensation for the additional suffering and incapacity. This point is illustrated in Performance Cars Ltd. V. Abraham. This case involved a car that had already suffered damage requiring a repaint that was involved in a further collision with the defendant. It was held that the defendant was only liable for the additional damage to the vehicle because he had damaged a car that was already damaged. The same principle here could be applied to this personal injury situation where Ingrid will only be responsible for the further injury.
The facts of this circumstance involving Gerry are sufficiently similar to that of Baker v. Willoughby and so the details of this case could be important and authorative. In this case the claimant, when crossing the road was knocked down by a motorist (the defendant) and his left leg and ankle were injured, the ankle becoming stiff. The leg was later amputated following a separate and unrelated incident in which robbers at work shot him. The question raised in this case was, what effect did the second injury have on the defendants liability? The defendant tried to claim that the second injury submerged or obliterated the effect of the first and that all loss thereafter should be attributed to the robbers. He argued that he should only pay for the loss occurring between the car accident and the robbery since the robbery could be regarded as a supervening event of a tortious nature. Lord Reid dismissed these claims stating,
“A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities, which depend on the freedom of movement, and his inability to earn as much as he used to earn or could have earned if there had been no accident. In this case the second injury did not diminish any of these. So why should it be regarded as having obliterated or superseded them?”
The House of Lords in this case held that the defendant was liable for the full consequences of the injury he caused regardless of the second incident. Therefore, the defendant had to pay damages for the losses beyond the point at which the leg was amputated. This could be argued to be quite a fictional compensation considering the claimant was receiving damages for the pain and suffering that he would no longer endure, as the leg was not there. Bearing this judgement in mind, Baker v. Willoughby is viewed as an exception to the normal application of the ‘but-for’ rule, justified by the principle of fully compensating the plaintiff for damage tortiously inflicted. This can be criticised however, since the arguments of Lord Reid fail to do justice to the basic point of the but-for test, in that since the claimant lost his leg anyway through a separate and unconnected event, the defendant should not be held responsible for what happened after that point in time. The two events were not concurrent causes of the claimant’s total disability, as the first event had nothing to do with the complete loss of the leg.
The facts of this situation involving Gerry are sufficiently similar to those of Baker v. Willoughby since they both involve two separate, unconnected torts. Following the judgement in this case, Harry would still be liable for the loss incurred by Gerry, despite the second injury. As it was argued in Baker v. Willoughby there would only be a change in liability if before the assessment of the damages something happened which diminished the devaluation (i.e. a shortened life expectancy) and since there is not one in this instance, Harry would be liable for Gerry’s loss of earnings for sixth months and for the permanent loss of ability of his right leg.
However, in Jobling v. Associated Dairies, the House of Lords also had to deal with an issue involving a claimant who injured his back at work but then was rendered totally unfit for work by the onset of a medical condition that developed after the original accident but was in no way connected to it. This again looked at the extent of liability for the defendant, assessing whether the employer was liable to cover damages of the loss of a full working life or only until the medical condition had set in. At first sight the House of Lords reached what appeared to be a contradictory decision to that of Baker v. Willoughby when it was found that the claimant could only recover for loss until the medical condition had independently rendered him unfit for work. This seems fair in the sense that had the defendant been liable for the full working life of the claimant; the claimant would have been in a better position financially since he would have inevitably had to stop work. As stated by Lord Bridge,
“ When the supervening illness or injury, which is the independent cause of the loss of earning capacity, has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his earnings would now be reduced or extinguished. To hold the tortfeasor, in this situation, liable to pay damages for a notional continuing loss of earnings attributable to the tortious injury is to put the plaintiff in a better position than he would be in if he had never suffered the tortious injury.”
This also coincides with the balancing of probabilities since it was certain that the claimant would be unfit for work by a certain date. Although some could argue against this in the sense that the amount of damages received by the claimant will be based on luck depending upon whether their medical condition arises (assuming they have one) before the trial or after. It is useful to have looked at this case since it too involves the circumstance of two independent events being causal factors to a claimant’s injury. In a case like this the but-for test is applied on the balance of probabilities.
It can be shown therefore that when applying the but-for test both Harry and Ingrid may be found to have caused injury. The second part of the causal link involves looking at the remoteness of the damage and whether it would be reasonably foreseeable. This can be established for Harry with relation to Gerry’s limp but not with regard to the whole injury (the amputation of the leg) because it could be argued that this injury is too remote from the negligent act of Harry. The question with Ingrid is whether she will be liable to have caused the whole injury or just the additional injury to Gerry. It can be found that Ingrid is only liable for the additional injury that she caused to Gerry following the principle in Performance Cars Ltd. However some could argue that this would be unfair if the original limp had no effect on the impact of the second injury. i.e if the leg would have had to be amputated anyway, even if the first accident had not occurred.
Would your answer be different if: (i) Gerry could have avoided being hit by Ingrid had he not been suffering from a limp because of the initial fall; (ii) it emerges that Gerry has been suffering all along from a rare wasting disease which would have left him crippled within a short space of returning to work?
With regard to situation (i), the circumstance would change in respect to the first injury being related to the second injury. The two accidents would no longer be unrelated, unconnected events and would involve looking at issues of cumulative and alternative causes. The question could then be asked whether the actual limp of Gerry is the cause of the accident and hence, the amputation of the leg, or would the carelessness of Ingrid be the cause? The case of Wilsher v. Essex can be looked at if this situation arose. In the case of Wilsher v. Essex the claimant suffered injury to his retina after being born prematurely and receiving too much oxygen by the carelessness of the doctors. However it was found that the defendants could not be liable since there were a number of factors that could cause the condition in premature babies. Because medical evidence could not show that the condition was caused by the carelessness of the doctors, the claim failed. What was argued in this case was whether the negligence of the doctors could have been capable of causing or materially contributing to the claimants’ condition. It was found on a balance of probabilities that it did not. This case, as with that of Fairchild v. Glenhaven Funeral Services Ltd had the problem of not knowing which factor (or breach of duty) could be determined to be the actual cause of the injury. It could be argued to be too remote to hold Harry liable for injuries that occur after the actual injury at work and so this argument of cumulative cause could be lost. However, Harry could be held responsible for the cumulative consequences of both injuries since it was his Gerry’s initial incapacity that had prevented him from getting out of the way. The amount of damages that Ingrid has to pay may be reduced if it could be found that Gerry was contributory negligent in putting himself in that situation anyway. However this could be unlikely since it is quite reasonable that he would want to cross the road and his incapacity should not limit this. Otherwise, Ingrid’s liability will not change.
When looking at the possible situation of (ii) the facts of this situation are sufficiently similar to those of Jobling v. Associated Dairies Ltd. Because Gerry would have been crippled anyway then the but-for test when applied would absolve both Harry and Ingrid from paying for the harm after the point in time when the disease sets in which would be within a short space of time of Gerry returning to work. They would both still be liable for their injuries up until that point and have to pay the required damages.
