A Claimant who lost a leg as a result of his employer’s negligence could also recover the additional loss caused by a fall, the cause of which claim was partly his fault (Spencer v Wincanton).

Spencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd)
[2009] EWCA Civ 1404

Background

In March 2000, the Claimant had damaged his knee in an apparently minor accident but which lead to his leg being amputated above the knee in February 2003. The Defendant admitted breach and causation of the injury, including the amputation.

On 14.10.03, a week or so before the car was due to go in for conversion, the Claimant 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 his prosthesis nor his 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 ruptured his left quadriceps tendon and did lasting damage which has confined him to a wheelchair.

The Defendant denied causation in respect of the increased damages consequent upon the second accident on the ground that the Claimant’s unreasonable conduct broke the chain of causation. A Part 20 claim against Sainsbury’s was dismissed at trial where the Judge held that the second injury did form part of the damage for which the Defendant was liable, though he reduced the consequent damages by one third to reflect the Claimant’s fault in not seeing the manhole and in not using his sticks.

Court of Appeal decision

The Court of Appeal dismissed the Defendant’s appeal.

The test was set out in the House of Lords in the Scottish case McKew v Holland and Hannen and Cubitts (Scotland) Ltd. Lord Reid said:

"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…So in my view the question here is whether the second accident was caused by the appellant doing something unreasonable."

The problem is that "unreasonable" covered a wide range of meanings. The rationale of the principle that an intervening event broke the chain of causation was fairness. The degree of unreasonable conduct required by the McKew test was very high. However, it was unhelpful to describe the later conduct required by the test as reckless or deliberate. The Judge had found that the Claimant's conduct had fallen far below McKew unreasonableness, and there was no good reason to go behind his judgment. If he had found the Claimant principally to blame, the case might have been closer to McKew. The apportionment of blame spoke clearly against a finding either that the Claimant had acted recklessly or that it was unfair to treat the chain of causation as surviving the second accident. Like the amputation, the second accident had been an unexpected but real consequence of the first accident, albeit one to which the Claimant's own misjudgement had contributed.