Dalling v R J Heale & Co Ltd

This is an appeal from the order of HH Judge Seys Llewellyn handed down in the Swansea County Court on 30 March 2010 (order sealed 23 June 2010). The judge awarded damages to the claimant, Stephen John Dalling, for personal injuries resulting from an accident which occurred at his place of employment on 4 March 2005. Liability was compromised by the parties on the basis that the claimant would recover 75% of the full verdict damages. The hearing before the judge was for the assessment of damages.

For the most part, the judge’s assessment of damages has proved uncontentious. Only one aspect of his judgment falls for consideration on this appeal. In October 2008, the claimant had a second accident. He fell over backwards in a public house and sustained a further head injury. He had had too much to drink. It was his case, on the assessment of damages in respect of the 2005 accident, that the additional injuries suffered in 2008 were causally related to his first head injury. His head injury had impaired his judgment and his ability to control his drinking; also he had become more readily affected by drink. The defendant disputed these contentions, alleging that the claimant’s drunkenness that night was a voluntary act on his part, unrelated to his previous accident. In short, the defendant relied on novus actus interveniens.

The judge held that the first head injury had had a causative effect in relation to the second accident. However, he also held that the claimant had failed to take reasonable care for himself on that occasion. He included in his award damages for the second accident but reduced them by one third for contributory negligence. The defendant’s appeal to this court is concerned only with the judge’s decision to award the claimant damages for the second accident. No complaint is made about any other aspect of the judgment.

Mr Dalling, the respondent in this court, was born in 1979 and was 25 at the time of his first accident in 2005. He had been in regular employment as a ceiling fixer. He lived with his partner, Gemma Harris, who was expecting their first child. He was a keen sportsman and played football regularly.

In the 2005 accident, the respondent fell from a height of about 15 feet. He suffered a severe head injury and fractured his first lumbar vertebra. The head injury included an extensive right petrous bone fracture and extensive frontal contusions leading to brain swelling. He has made a remarkably good although incomplete physical recovery. The head injury has had permanent sequelae, including some hearing loss and the loss of the sense of smell. Perhaps surprisingly, there remains no significant cognitive or intellectual deficit. The main long term problem is that the respondent has been left with executive dysfunction. He has poor concentration, short attention span, impaired memory, some loss of emotional control, variation of mood, fatigue, reduced ability to initiate activities or motivate himself and impaired ability to plan ahead. He has become verbally aggressive. He is unlikely ever to work again in other than a therapeutic setting. He has also had problems related to excessive drinking. The extent and severity of these symptoms and their relation to the 2005 accident were disputed at the hearing below but the judge accepted and based his findings upon the evidence of Dr Mark Upton the consultant neuro-psychiatrist called for the respondent. It is now accepted that the judge’s findings cannot be challenged.

Of prime importance in this appeal is the history of the respondent’s drinking habits. The judge accepted that, before the 2005 accident, he only rarely drank to excess. Although on a few occasions he had been both physically and verbally aggressive when drunk, he had never been so drunk as to fall over. His usual pattern was to go for a drink with his friends after football matches or training sessions but he would have only a couple of pints of beer before going home.

Once the respondent had made a sufficient physical recovery from the accident that he was able to go out and about alone, his drinking habits changed markedly. The judge accepted the account of this change as described by Miss Harris and as recorded by Professor Rodger Wood, the consultant neuro-psychologist instructed by the respondent. Possibly by mid-2006 and certainly by 2007, the respondent had begun to drink to excess. He would go out drinking with friends and ‘would not know when to stop’. He would get very drunk and could become aggressive. Miss Harris said that he would sometimes be ‘paralytic’. Added to this problem, he began to use Valium which had not been prescribed by his doctor. These changes put great pressure on the relationship and the couple separated for a short time in late 2007. Miss Harris returned home when the respondent promised to change his ways. However, any improvement was temporary and there was a recurrence of excessive drinking in the latter part of 2008. Again, the problem was described by Miss Harris, this time to Dr Graham Powell, consultant neuro-psychologist instructed by the appellant. The respondent did not know when to stop drinking and come home. He had recently come home so drunk he could hardly stand up. Also, when drunk he was aggressive and abusive.

The expert evidence which the judge accepted was to the effect that the head injury had reduced the respondent’s ability to control his drinking habit. It had had a disinhibiting effect. It had probably also had the effect of potentiating the effect of alcohol upon him, in that he would become more drunk on a modest amount than he would have been but for the head injury.

The respondent’s second accident occurred on 25 October 2008. It was captured on CCTV. He could be seen moving about the public house where he had spent the evening. Then, while in a corridor, he fell over backwards. This occurred without intervention by any other person. He struck his head on the floor. It was common ground that he had had far too much to drink. The appellant contended that the respondent had taken cocaine that night but the judge found that he had not and there is no appeal from that finding.

The respondent suffered another head injury, this time much less severe than that in 2005. No criticism is made of the judge’s description of the effect of that accident or of his assessment of the damages attributable to it. The only issue is the appellant’s liability for those damages.

For the sake of completeness, it is necessary to mention that, in about December 2008, Miss Harris gave the respondent an ultimatum about his drinking. Unless he stopped drinking to excess, their relationship was over. Since then, the respondent has greatly reduced his drinking and, at the time of the hearing before the judge, the relationship was stable.

The appellant submitted that there was a break in the chain of causation between the first accident for which it was liable and the second accident for which it should not be held liable. The evidence showed that the respondent was capable of controlling his drinking. He had controlled it for a time after Gemma had left him in late 2007. He had controlled it again, more effectively, after her ultimatum in December 2008. That demonstrated that at the time of the second accident in October 2008, his excessive drinking had been a completely voluntary act for which the appellant should bear no responsibility.

The main submission advanced by the respondent was that there was a causal link between the 2005 accident, the resulting brain damage and the change in the respondent’s drinking habits. If it had not been for the accident, it was most unlikely that the respondent would ever have taken to drinking to such excess that he was in danger of falling over. Such an event had never happened before the accident; it happened more than once after the accident. Further it was fair, just and reasonable that the appellant should be held liable for the consequences of the second accident.

The respondent’s submissions were complicated by an attempt to rely on an alternative argument that causation could be established if the respondent could show that the appellant’s negligence had materially increased the risk that he would suffer a second injury: see Fairchild v Glenhaven Funeral Services Ltd [2003] I AC 32 and McGhee v National Coal Board [1973] 1 WLR 1. The judge rightly rejected those submissions and we need say no more about them.

In the course of argument, the judge was referred to a line of cases which included McKew v Holland and Hannen and Cubitts (Scotland Ltd) [1969] 3AER 1621 (HL), Wright Estate v Davidson [1992] 88 DLR (4^th) 698, Wilson v Coulson [2002] PIQR P300, Corr v IBC Vehicles [2008] AC 884 and Spencer v Wincanton Holdings Ltd [2010] PIQR P8. Within Sedley LJ’s judgment in Spencer, there is an extensive citation from the speech of Lord Nicholls in Kuwait Airways Corporation v Iraqi Airways Co [2002] 2AC 883, [2002] UKHL 19. We will return to discuss some of these authorities later in this judgment.

The judge based his approach on paragraphs 69 and 70 of the speech of Lord Nicholls in Kuwait Airways. He quoted a passage which he appears to have thought, mistakenly, came from the judgment of Sedley LJ in Spencer; in fact Sedley LJ was quoting from Lord Nicholls in Kuwait Airways. It matters not. The passage he relied is as follows:

“69.

Then how does one identify a plaintiff’s “true loss” in cases of tort? ….. I take as my starting point the commonly accepted approach that the extent of the defendant’s liability for the plaintiff’s loss calls for a two stage inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple “but for” test, is predominantly a factual inquiry. ….

70.

The second inquiry, although this is not always openly acknowledged by the courts involves a value judgment (“ought to be held liable”). Written large, the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are interchangeable). …. The inquiry is whether the plaintiff’s harm or loss should be within the scope of the defendant’s liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible.”

The judge did not quote the last few sentences of that paragraph. It seems to us that they are relevant to this appeal and we insert them now:

“In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant’s responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.”

The judge then continued his quotation with a passage taken from Sedley LJ’s judgment in Spencer, where, after quoting the above passage from Kuwait Airways, Sedley LJ said, at paragraph 15:

“Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury has been in substance brought about by the claimant and not the tortfeasor. ”

Having thus directed himself, the judge set about his two stage inquiry. First, he had to decide whether the defendant’s tort contributed causally to the loss in dispute. If it did, he had to decide to what extent the defendant ought to be held liable for the loss. The first stage was a predominantly factual enquiry. The second entailed a value judgment based upon concepts of fairness, justice and reasonableness.

After reviewing the relevant evidence, the judge gave his answer to the first stage of the enquiry at paragraph 97 of his judgment where he said:

“Thus far, on the factual and the medical evidence, the evidence appears to me on the strong balance of probabilities to establish that the direct dysexecutive impairments and associated difficulties following the accident of 2005 played a causative part in the drinking to very great excess on 25^th October 2008. ”

Turning to the second stage of his inquiry, at paragraph 98, the judge said:

“I remind myself that the law has to set a limit to the causally connected losses for which a defendant is to be held liable, and that there comes a point when it may be said that a claimant suffers a further injury which, while it would not have happened without the initial injury has been in substance brought about by the claimant and not the tortfeasor. In the light of the evidence which I prefer, of Gemma, Dr Upton and Professor Wood and as matter of the value judgment to which Sedley LJ refers in Spencer, of the fairness and justice to which many opinions in the House of Lords on cases as to “causation” refer, I consider that it is fair to hold the defendant responsible for a continuing effect of the original injury in the fall of October 2008. To express it in a different way, it would be firstly somewhat artificial and secondly simply unfair to regard the 2008 accident as having been in substance brought about by the Claimant and not at all by the tortfeasor.”

Finally on this issue, the judge considered the question of contributory negligence. Within paragraph 103, he said:

“The causative degree of lack of self control and enhanced susceptibility to the potency of alcohol are, (on my findings) overwhelmingly the product of the wrongful infliction of injury in 2005. First, therefore I find the Claimant should bear only a lesser responsibility, say one third, for the accident of 2008. Second….”

The judge then went on to describe the long term effects of the second accident as to which no point arises on this appeal.

Pursuant to permission granted by Aikens LJ, the appellant challenged the judge’s holding that it should be held liable at all for the consequences of the injury suffered in October 2008. In the alternative, the appellant contended that the judge’s holding on contributory negligence was illogical and wrong.

Mr Ronald Walker QC for the appellant accepted that the judge had directed himself correctly as to the two-stage inquiry called for. He also accepted that, on the basis of the evidence which the judge had preferred, he had been entitled to hold, as he had done in paragraph 97, that the second injury was causally related to the first accident and therefore to the tort. His complaint related to the judge’s approach to the second stage of the inquiry. He submitted that the judge had asked himself only whether it was fair and just that the appellant should be liable for the consequences of the second accident. He had failed to ask, as he should have done, whether the respondent’s action in getting very drunk had been an act of his own volition (in which case the appellant would not be liable for the consequences) or whether it had resulted from an “incapacity in his faculty of volition”.

Mr Walker relied on Corr v IBC Vehicles [2008] AC 884. In that case, Mr Corr suffered a head injury at work for which his employers were liable. As a consequence of the head injury, he became depressed and, about 6 years after the initial accident, he committed suicide. The widow brought a claim on behalf of her husband’s estate for his injuries and loss and also sued on her own behalf under the Fatal Accidents Act 1976 in relation to the suicide. Liability for the initial tort was not in issue but the defendants argued that the suicide had been an act of the deceased’s free will for which it was not liable; the suicide was a novus actus interveniens which had broken the chain of causation. The House of Lords held that, although the suicide had been a deliberate conscious act, it had been the result of a depressive illness which was caused by the defendant’s tort. Further, the House accepted that, in theory, a partial defence of contributory negligence was available to the defendant but declined (Lord Scott of Foscote dissenting) to reduce the damages in that case. At paragraph 15, Lord Bingham of Cornhill said:

“The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less so where the independent supervening cause is a voluntary informed decision taken by the victim as an adult of sound mind, making and giving effect to a personal decision about his own future. Thus I respectfully think that the British Columbia Court of Appeal (McEachern CJBC, Legg and Hollinrake JJA) were right to hold that the suicide of a road accident victim was a novus actus in the light of its conclusion that when the victim took her life “she made a conscious decision, there being no evidence of a disabling mental illness to lead to the conclusion that she had an incapacity in her faculty of volition”: Wright Estate v Davidson (1992) 88 DLR (4^th) 698, 705. In such circumstances it is usual to describe the chain of causation being broken but it is perhaps equally accurate to say that the victim’s independent act forms no part of a chain of causation beginning with the tortfeasor’s breach of duty.”

Mr Walker’s submission was that the judge had not taken account of the respondent’s ability to control his drinking which was, in his submission, such as to render his decision to get drunk a free act of volition. A free act of volition can either be said to break the chain of causation or could be said to be no part of the chain of causation. The judge’s approach at the second stage of his enquiry had been limited to considerations of fairness and justice. He had ignored or glossed over the question of the respondent’s own responsibility for his actions.

As to contributory negligence, Mr Walker submitted that it was illogical to hold that the respondent had caused the second head injury (presumably on the basis that the respondent had not been capable of a free act of volition) and yet to reduce the damages on the basis that the respondent was also at fault and had contributed to the second accident. Yet Mr Walker had to accept that, in Corr, the House of Lords had accepted that such a finding was open to the court in the kind of situation which arose there. Indeed, Lord Scott would have favoured a reduction of 20%. He could not sensibly distinguish that case from the present.

Mr Walker expressly accepted, both in his skeleton argument and in his oral submissions, that the judge had been entitled to hold, as he did, that the second injury was causally related to the tort. The judge had then to consider whether, notwithstanding that causal link, it was unfair or unjust to hold the defendant liable. We see from Lord Nicholls’ speech in Kuwait Airways and from Lord Bingham’s in Corr that one of the considerations relevant to that issue is whether the claimant himself was substantially responsible for his injury. So, it would be possible for a judge to hold that, even though there was a causal link between the defendant’s tort and the injury, the claimant should not recover anything because the injury was substantially his own fault. But it is clear that the judge thought that both the appellant and the respondent bore significant responsibility. Mr Walker can properly complain that, in his paragraph 98, the judge did not expressly refer to the extent of the respondent’s responsibility. It might have been better if, in that paragraph, he had expressed the view (which he clearly held) that the tort had not completely destroyed the respondent’s ability to control his drinking. But it had impaired it so that the respondent’s action in getting drunk in October 2008 was not an act of free volition. It was an action for which he was partly responsible and the appellant was partly responsible. Even though the judge did not spell this out in paragraph 98, it is perfectly clear, from his holding on contributory negligence in paragraph 103, that that is what he thought. Thus, he had applied his mind to the question of whether the respondent’s action was a free and voluntary act and was satisfied that it was not. He was clearly of the view that both the appellant and the respondent had made substantial contributions to the happening of the second accident. In the event, he apportioned the responsibility of the appellant at two thirds. In those circumstances, it was entirely natural that he should say that it was fair and just to hold the appellant partly liable. It would, in our view, have been quite illogical for him to say that it was not fair and just for the appellant to be liable if he thought that it was two thirds to blame.

In the light of the discussion about contributory negligence in Corr, Mr Walker did not pursue his argument on contributory negligence with any vigour. He was right not to do so. There was nothing illogical about the judge’s view that this second injury was caused partly by the fault of the appellant and partly by the fault of the respondent himself. Mr Walker did not suggest that, if apportionment was available, the judge’s apportionment could be challenged.

For those reasons, we would dismiss this appeal.