Wincanton loses appeal liability for second injury

Robert Eric Spencer v Wincanton Holdings (Wincanton Logistics)

(Court of Appeal — 21 December 2009)

The claimant had been injured at work and subsequently underwent an above-knee amputation of the right leg. Liability was admitted and judgment entered with damages to be assessed at a later date. He was a stoic individual and, before the disposal date, he suffered further injury when he fell at a garage forecourt. At the time he was not using either his prosthesis or a stick.

 

At first instance, the judge held that the injury suffered on the forecourt formed part of the damage the defendant was liable for, subject only to a reduction of one third to reflect the claimant's own negligence in relation to the second accident. The defendant appealed.

 

The court had to consider issues of causation and remoteness of damage. The defendant based its appeal on two arguments, namely that:

 

(i) It could not be liable for damages arising out of the consequences of the second accident where they were of a kind that was not reasonably foreseeable; and

 

(ii) It should not be liable for damages flowing from the second accident because those damages were as a result of the "unreasonable behaviour" of the claimant.

 

The Court of Appeal considered the outcome in various earlier cases — principally McKew v Holland and Hannen and Cubitts (Scotland) (1969); Simmons v British Steel (2004); and Kuwait Airways Corporation v Iraqi Airways Company (2002). The appeal was dismissed.

 

In relation to the issue of foreseeability, it was foreseeable that personal injury following on from the amputation, and which would not have occurred but for the amputation, must be treated as a consequence that was reasonably foreseeable at the time of the first accident.

 

Furthermore, in relation to "unreasonable behaviour" by the claimant and what behaviour would be so unreasonable as to constitute a novus actus interveniens (break in the chain of causation), the court said that the degree of unreasonable conduct required is "very high". In the present case the appeal court did not interfere with the trial judge's decision that the claimant's behaviour at the petrol station was not unreasonable.

Comment

This decision demonstrates that the courts are continuing to take a broad approach to the issue of causation. However, the courts will not be drawn into stating any general test. Each case is fact-sensitive and will be decided on its own merits.

- Richard Clarke, BLM Stockton-on-Tees

This law report first appeared in Post Magazine on 25 February2010

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