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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rahman v Arearose Ltd & Anor [2000] EWCA Civ 190 (15 June 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/190.html
Cite as: 62 BMLR 84, [2001] QB 351, [2000] 3 WLR 1184, [2000] EWCA Civ 190, (2001) 62 BMLR 84
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QBENBF 1999/ 0410/1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE QUEEN'S BENCH DIVISION
(MR JUSTICE ROUGIER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 15 June 2000
LORD JUSTICE HENRY
LORD JUSTICE SCHIEMANN
and
LORD JUSTICE LAWS
- - - - - - - - - - - - - - - - - - - - -
RAHMAN |
Claimant | |
- and - |
||
AREAROSE
LIMITED& ANR |
First
Defendant |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
----------------------------------
Ronald Walker QC and Susan Rodway (instructed by Messrs Vizards Staples & Bannisters for the First Defendant)
Bernard Livesey QC and Seanin Gilmore (instructed by Messrs Beachcroft Wansborough for the Second Defendant)
Lord Brennan QC, Robin Oppenheim and Paula Sparks (instructed by Messrs Christian Fisher for the Claimant)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE LAWS:
1 INTRODUCTORY
This is an appeal, brought with permission granted by the trial judge, against part of a decision of Rougier J in his judgment in the action given on 18 February 1999. The claim was for damages for personal injuries, loss and damage said to have been occasioned by the negligence of the first and/or second defendants. The second defendants had admitted liability before the trial. The judge found the first defendants were also liable. He assessed the claimant's damages and made awards against both defendants to reflect his view of the appropriate extent of the responsibility of each of them for the claimant's injuries and losses. By the appeal the first defendants complain of the apportionment, or distribution, of damages effected by the judge as between themselves and their co-defendants. The claimant and second defendants have both lodged respondents' notices. The first defendants also sought permission to appeal against the judge's findings of causation in the context of his conclusion as to liability. That was refused by Rougier J, but granted by Stuart-Smith LJ on 28 May 1999. However the liability/causation issue has been compromised by the claimant and the first defendants on the footing that the latter should pay 60% of whatever sum would represent the damages to be laid at their door in light of our conclusions on the appeal. In addition, the claimant seeks permission to appeal against the judge's findings as to the general damages due for pain, suffering and loss of amenity, in light of the judgment of this Court (constituted by five judges presided over by the Master of the Rolls) in Heil v Rankin & anor (transcript, 23 March 2000).
2 THE FACTS
The claimant, who was born on 13 January 1969, was in October 1991 appointed manager at the King's Cross branch of Burger King, where the franchisees were the first defendants who were thus the claimant's employers. On 28 March 1995 two black youths came into the premises and began to cause trouble. They were members of a gang who had been there before. The claimant ordered them off the premises. But they burst through the staff door beside the serving counter, and subjected the claimant to a vicious and brutal assault. They punched and kicked him. One of them began to strike him with a fire bar taken from a boiling hot fryer, splashing boiling oil over the tops of his legs. He slipped to the floor. There, he was kicked and punched again. One of the youths had a large gold ring on one finger. That connected with the claimant's right eye. One or both of them stamped on his face. He lapsed into semi-consciousness.
3 In the immediate aftermath of the assault he was cared for overnight at University College Hospital. Then on 3 April 1995 an eye specialist to whom the claimant had been referred diagnosed a fracture of the orbital wall of the right eye, which was confirmed by a CT scan undertaken the same day. A decision was taken that surgical intervention was indicated, apparently to prevent the eye from sinking in its socket so as to present an unsightly appearance. The claimant consented to an operation being performed, and a bone graft was carried out, again on the same day. Some hours after the operation his right pupil was observed not to be reacting to light. On 4 April a CT scan showed that the bone graft was impinging on the optic nerve. A further operation was carried out that day, but the vision in the right eye has been permanently lost.
4 The claim against the first defendants was to the effect that as the claimant's employers they owed a duty to take measures to protect their staff which they breached. There was evidence of previous assaults in the restaurant upon the claimant and other members of the staff. The first defendants denied any breach of duty and asserted that in any event there were no measures which they could reasonably have been expected to undertake which would have prevented the attack. However, as I have said, the judge found for the claimant on the issue of liability. The second defendants are the NHS Trust which is vicariously responsible for the admitted negligence of the surgeon who operated on the claimant.
5 Although it goes without saying that the physical injuries suffered by the claimant, both in the assault and in consequence of the bungled surgery, were grave indeed, it is the psychiatric aspect of his condition that has given rise to the issue falling for determination on the first defendants' appeal. In the course of argument this has sometimes been referred to as the "contribution" issue, and indeed Rougier J so described it when granting permission to appeal. However there were no contribution proceedings as such at first instance, and in light of the arguments developed before us, which I will of course explain, the term "contribution" may be thought to be question-begging. The issue is best described thus: what is the correct approach in principle to the assessment of the damages which each defendant should be required to pay so as to reflect the extent of their respective liability to compensate the claimant for his psychiatric injuries and their consequences?
6 The judge's description of the claimant's psychiatric problems reads in part as follows (transcript, 10F ff):
"Besides the identifiable physical effects of these two separate injuries, the plaintiff suffers from an intractable psychiatric disability of very great severity. Not to put too fine a point on it, his life is in ruins. The psychiatrists from all three sides who have examined this man are agreed that he has a post-traumatic stress disorder of great severity manifesting itself in intense and wholly irrational dread of Afro-Caribbean people. Additionally, he has a severe depressive disorder of psychotic intensity with all the classic symptoms of apathy, misery and feelings of hopelessness, amounting at times to the suicidal...
[H]e now spends all his time sitting at home in a state alternating between listlessness and terror. He cannot be left alone. Finally, he has an enduring personality change. His flash point is now very low and he has quarrelled, even to the point of violence, with his brothers and sisters. Relations between himself and his father are virtually nil, so that he has left the family home and lives in a two-room flat...
He is at present unemployable and has not worked since the first incident. [The judge then refers to the claimant's marriage, which took place in 1997.] [H]is wife,... an intelligent and devoted young woman,... abandoned her own training as a lawyer and now devotes herself almost entirely to looking after her husband...
The effects of the two separate incidents, which have led to the condition I have outlined, are entwined around each other like ivy strands round a tree. The court is faced with the daunting task of trying to disentangle various causes and effects and to determine at which door they are to be laid."
7 As the judge indicated, each of the three parties instructed a psychiatrist: Dr Lipsedge for the claimant, Dr Baggaley for the first defendants and Dr Bradley for the second defendants. They all produced reports, but at length were asked by the lawyers to meet and explore what degree of agreement they might reach. Their conclusions were reduced to writing. This document is to my mind of the first importance, and I propose to set it out in full, as did the judge below.
"Summary of Discussions Between Doctor Lipsedge, Doctor Bradley and Dr Baggaley
The experts were asked to consider three issues:
The diagnosis,
prognosis and
Mr Rahman's condition if the eye injury had not occurred.
Diagnosis
All experts agree that Mr Rahman has:
Post traumatic stress disorder (PTSD).
A severe depressive disorder of psychotic intensity.
A specific phobia of black people with paranoid elaboration.
Enduring personality change.
Aetiology
The aetiology of the individual disorders is considered to be:
PTSD. This is thought to be largely due to the assault but some symptoms are related to the operation.
A severe depressive disorder of psychotic intensity. This is thought to be largely a psychological reaction to the loss of the eye.
A specific phobia of black people with paranoid elaboration. This is thought to be due to the assault, and subsequent threats, court attendances and identification parades. It has also been reinforced by subsequent events such as the attack on his brother by a black man.
Enduring personality change. This is thought to be due to the synergistic effect of the depression and the PTSD and probably would not have developed [the word "occurred" follows but is struck through] if Mr Rahman had not lost his vision in one eye.
Prognosis.
All experts agreed that the prognosis is poor in spite of the fact that his personality before the assault appears to have been stable.
It is unlikely that Mr Rahman will resume work in the foreseeable future, and it is the view of two of the experts (MB [sc. Dr Baggaley], ML) that this will be indefinite. He is also at risk of criminal behaviour and there is the possibility of suicide. There has been damage to his relationships with family and friends although recent reports suggest that there has been some improvement in the relationship with his wife although he considers her more as a nurse than as a wife.
Mr Rahman is severely disabled to the extent that he cannot face black people at all and he also has worrying ideas for example, of carrying a weapon and has behaved dangerously.
What If the Eye Injury Had Not Occurred?
Mr Rahman would still have developed PTSD and the symptoms would have persisted severely for at least one year and would have gone on for up to another two years with a gradual decrease in severity. This would not necessarily have made it impossible for him to work although he would have been extremely wary of black people and so would have found it difficult to work in a situation in which black people were present in significant numbers. Without the eye injury there would not have been an enduring personality change. He might well have developed flash backs and nightmares which might have persisted. The phobia would probably have endured, and might well have persisted indefinitely but at a lesser degree of severity and with no paranoid elaboration.
All experts agree that the loss of Mr Rahman's eyesight had a profoundly serious effect which is tied up with his fear of total blindness which in turn is exacerbated by the threats of his assailants to physically injure him again. Thus his sense of vulnerability has been enhanced by the loss of vision in one eye, and this in turn has perpetuated all the other psychopathology."
8 After citing this document, the judge said this (16C ff):
"Additionally, I had the benefit of hearing from all three specialists. This much is clear: the first incident left the plaintiff more vulnerable to the psychiatric effects of the second. Some of the effects of each incident are separate and operate independently; some effects of the first incident have been aggravated by the second; others have merged with it. Further, the two sets of effects have a synergistic interaction, in that each tends to make the other worse. All of the specialists agree that any answer to enquiries along the lines of `supposing the one or the other had not happened' are steeped in speculation."
9 THE JUDGE'S APPROACH
Immediately after the passage just cited, Rougier J said this (16F ff):
"I have given long and anxious consideration to the correct way in which to approach the problem. After several unsuccessful attempts to deal with it in what one might call the conventional way, that is by starting with the negligent acts or omissions to sort out just what result they produced undiluted, as it were, by other aggravating or synergistic factors. I have come to the conclusion that such a method in these complex circumstances is almost certain to produce an erroneous answer...
Since I regard the defendants as not joint, but essentially separate, tortfeasors, I shall assess the value of the plaintiff's case in the round, as it stands, without reference to the competition between contributing factors. This will involve the usual items of pain, suffering, loss of amenities, incidental expenses, costs of care both past and future, loss of wage and diminution in employability.
Where pain, suffering and loss of amenities are concerned, I think it possible to make separate awards and I will do so. Thereafter, however, I propose to take a somewhat global view of the extent to which the negligence of each defendant has contributed to the total of the plaintiff's loss."
The judge proceeded (20B-C) to assess the general damages as against the first defendants at £7,500, and as against the second defendants (22G) at £55,000. He then turned to all the other items going to make up the claim, and arrived at his conclusions, as he said he would, on what one might call 100% basis without at this stage drawing distinctions between the defendants. The figures at which he arrived are conveniently set out in a schedule attached to the skeleton argument prepared by Mr Walker QC for the first defendants. The special damages, for pecuniary loss pre-trial, amounted to £80,928 inclusive of interest, from which fell to be made a Compensation Recovery Unit deduction of £12,346-08, leaving £68,581-92 for past losses. The major items were loss of earnings (£56,770) and past care (£10,000). Turning to future loss, the judge arrived at a figure of £71,799 for future care, and £364,562 for future loss of earnings. This latter figure was on the basis that the claimant "should be awarded the purchase of 19.10 years on the mean average net earnings of an area manager in the fast food industry" (34D). Included in the damages were certain smaller items, both past and future, to which I will have to make brief reference later in this judgment. The total figure for future loss came to £441,361, so that the grand total for past and future losses was £509,942-92.
10 Then the judge turned to the apportionment (as he put it) of the damages between the defendants. Here is his reasoning (37F ff):
"As promised, I list the factors which I have taken into account: (1) the agreed summary of the psychiatrists' views insofar as it deals with etiology (sic) and provides an informed speculation on what the position would have been had the second incident not occurred. (2) The fact that the result of the assault was to render Mr Rahman more liable to sustain a psychiatric abreaction to the second incident. It has been suggested, on behalf of the first defendants... that this is effectively an egg shell skull type of case where the second defendant must take their victim as they find him so that the entire psychiatric deficit becomes subsumed into the second defendants' negligence. This I reject for the simple reason that... it was the first defendants' negligence that brought about the eggshell skull condition. (3) That in a matter of a few years the effects of the assault would almost entirely have recovered, but that the effect of the second since was to turn a condition which was transient into one which will be, in a large measure, permanent. (4) That the effects of the assault would have been to curtail the plaintiff's field of employment severely for a few years at least. (5) That in all probability no, or very little, family care would have been required but for the second incident. (6) That the aspect which is likely to improve is that created by the assault. (7) The synergistic effect of each incident.
If I were to stop there and consider the matter in terms solely of causative potency, I should decide that what was attributable to the second defendant was three times as effective as that caused by the first. But Mr Livesey [for the second defendants], rightly I think, submits that I should also pay attention to the last factor. (8) Blameworthiness. Here, the first defendants' score is substantially higher. Whereas one must assume that the surgeon was trying to do his best, the first defendants definitely were not. Preferring profit margins to staff safety, they chose to close their eyes to an ever present risk of which they were well aware. In response to this factor I consider finally that the proper apportionment should be two-thirds to the second defendant and one third to the first."
And so the judge apportioned the damages accordingly.
11 THE PARTIES' CONTENTIONS
Mr Walker for the first defendants submitted that the judge was correct to find that the defendants were separate, independent tortfeasors; he was therefore right to assess the general damages independently attributable to each defendant's tort. However, upon this logic he should have adopted the same approach to all the other heads of damage, including future loss. On that basis, Mr Walker says that on a proper application of the judge's own findings of fact his clients' liability should have been restricted to:
(1) general damages (£7,500) plus interest: £7,856
(2) removal expenses (see judgment at 35C): £578
(3) three years loss of earnings plus interest: £47,183
which would amount in all to £55,617. In addition Mr Walker conceded that "arguably" some portion of the sum of £3,000 which the judge awarded for future removal expenses should lie at his clients' door. This was one of the smaller items of damage found by the judge, and arose from his finding, at 24D - 27A, that in the highly unusual circumstances of the case it would be reasonable for the claimant to mitigate his loss by moving away from London to an environment where he would encounter few if any black people. Mr Walker also submitted that the cost of increased insurance premiums (another of the smaller items), both past and future, was down to the second defendants in its entirety because it arose exclusively from the loss of vision in the claimant's right eye; and I understand Mr Livesey QC for the second defendants to concede as much.
12 Mr Brennan QC for the claimant supported Mr Walker's position. It was in his client's perfectly proper interest to shift as large a share of the overall damages as possible onto the second defendants, having regard to his settlement with the first defendants to the effect that they should bear only 60% of whatever was found attributable to them.
13 Mr Livesey QC for the second defendants submitted that on the facts of the case there were three categories of injury for which the claimant was entitled to be compensated:
(1) injuries and losses attributable solely to the assault;
(2) injuries and losses attributable solely to the loss of the right eye;
(3) injuries and losses attributable to both.
Mr Livesey says that on this basis (which in truth, he would argue, emerges from the judge's own findings) the right awards for general damages would have been: (a) against the first defendants, £7,500 for the physical injuries and disabilities consequent upon the assault only; (b) against the second defendants, £25,000 for loss of the eye; and (c) against both defendants, £30,000 for the psychiatric injuries caused by both of them, divided between them according to their respective causal contributions towards those injuries. Then as regards loss of earnings, Mr Livesey submits that the first defendants should be liable not only for the first three years of losses (which as I have said Mr Walker accepts) but also for the whole, or (recognising the spectacular optimism of that submission) "at the very least a significant proportion" of the claimant's future loss of earnings assessed by the judge at £364,562. Alternatively, if the court finds it impossible on the evidence to apportion any more precisely, these damages should be split 50:50.
14 THE ISSUES ANALYSED
These rival contentions do not merely reflect different possible perceptions of the merits of the case on the evidence. If they did, this court's role would be considerably restricted; it is elementary that the judgment of the overall factual merits in a case like this lies primarily with the judge of first instance. In this case, however, two issues of principle drive the positions taken by the parties, and their resolution will determine what is the right approach to be taken to the problems which confronted the judge.
15 The first issue is whether the provisions of ss.1(1) and 2(1) of the Civil Liability (Contribution) Act 1978 apply to that part of the case which concerns the psychological damage suffered by the claimant and its consequences, especially in regard to future loss. Mr Livesey submits that they do. Mr Walker and Mr Brennan submit that they do not. The second issue arises only if the 1978 Act does not apply. It is whether the first defendants should be held responsible for any loss or damage beyond that which the claimant would have suffered if the eye injury, caused by the second defendants' negligence, had not occurred. The first issue is one of statutory construction. The second involves a particular confrontation with the concept of causation, though that is also involved in the first.
16 The First Issue
S.1(1) of the Act provides so far as relevant:
"... any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)."
S.2(1):
"... in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."
Mr Livesey's case is that his category (3) of the claimant's injuries (see paragraph 13 above) constituted "same damage" within the meaning of s.1(1). If he is right, the correct apportionment between the defendants of the overall damages due to the claimant will be largely in line with Mr Livesey's submissions on the facts. And I should indicate at this stage that it is common ground between counsel that the respective defendants' blameworthiness - the judge's factor (8) - was properly taken into account if their contributions fell to be and were assessed under s.2(1) ("just and equitable") but not otherwise (though for reasons I will explain in dealing with the second issue, I would not myself accept this without qualification).
17 S.1(1) of the 1978 Act (like its predecessor contained in the Law Reform (Married Women and Tortfeasors) Act 1935) has to be considered in the light of the common law relating to "concurrent" tortfeasors. Tortfeasors are concurrent when their wrongful acts or omissions cause a single indivisible injury. In such a case each tortfeasor is liable in full to compensate the claimant for the whole of the damage. (The concept is quite different from that of joint tortfeasors, with which I need not take time. Concurrent tortfeasors may be joint or several.) Professor Glanville Williams (Joint Torts and Contributory Negligence, Stevens 1951, p.17) describes the matter thus:
"Several concurrent torts are of two kinds. There are those... where each of the two causes is necessary in order to effect the consequence. And there are those where either cause would be sufficient of itself to produce the consequence, as where two persons independently shoot at another at the same time, both shots being fatal. No legal consequences follow from the distinction, which is made here merely in order to indicate the scope of the concept of several concurrent torts.
The characteristic of such torts is the logical [my emphasis] impossibility of apportioning the damage among the different tortfeasors. As a leading American text-book [Prosser, Torts 328] puts it:
"If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury, and each will be liable for all of it. If they shoot him independently, with separate guns, and he dies, there can still be no division, for death cannot be apportioned except by an arbitrary rule. If they merely inflict separate wounds, and he survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries. There will be obvious difficulties of proof as to the apportionment of certain elements of damages, such as physical and mental suffering and medical expenses, but such difficulties are not insuperable, and it is better to attempt some rough division than to hold one defendant [liable] for the wound inflicted by the other. Upon the same basis, if two defendants each pollute a stream with oil, it is possible to say that each has interfered to a separate extent with the plaintiff's rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff's barn."
18 The reason for the rule that each concurrent tortfeasor is liable to compensate for the whole of the damage is not hard to find. In any such case, the claimant cannot prove that either tortfeasor singly caused the damage, or caused any particular part or portion of the damage. Accordingly his claim would fall to be dismissed, for want of proof of causation. But that would be the plainest injustice; hence the rule. However, the rule was a potential source of another injustice. A defendant against whom judgment had been given, under the rule, for the whole of the claimant's damages had at common law no cause of action against his fellow concurrent tortfeasor to recover any part of what he had to pay under the judgment; so that the second tortfeasor, if for whatever reason he was not sued by the claimant, might escape scot free. Hence the Act of 1978 and its predecessor the Law Reform (Married Women and Tortfeasors) Act 1935. It provides a right of contribution between concurrent tortfeasors. The expression "same damage" in s.1(1) therefore means (and means only) the kind of single indivisible injury as arises at common law in a case of concurrent torts.
19 The justice which lies behind the rule as to concurrent tortfeasors, that is the rule that each is liable for the whole of the damage constituted by the single indivisible injury suffered by the claimant, casts much light on what is meant by "single indivisible injury" and thus "same damage". Professor Glanville Williams referred to "the logical [my emphasis] impossibility of apportioning the damage among the different tortfeasors". This, I think, sits somewhat uneasily with a passage from the judgment of Devlin LJ as he then was in Dingle v Associated Newspapers [1961] 2 QB 162, 189 (cited by Mustill J, as he then was, in Thonpson v Smiths Shiprepairers [1984] 1 QB 405 at 439, 440 (to which I shall make further reference)):
"If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month's wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law."
This approach seems to me to differ somewhat from one based on a logical impossibility of apportioning damage between tortfeasors. But that distinction may be too fine. The reality, I think with respect, is that both Professor Williams and Devlin LJ are referrring to a class of case where there is simply no rational basis for an objective apportionment of causative responsibility for the injury between the tortfeasors; and the expression "single indivisible injury" is a shorthand description for that class of case. Now, the clearest instance of concurrent torts is one where the injury in question would not have occurred but for both torts: where, if only one had been committed, the injury would not have occurred at all. An example is afforded by a variant of the case given by Lord Devlin. Suppose that two assailants, not acting in concert, shoot a man, who dies in consequence; but the expert evidence is that either shot on its own, while causing grave injuries, would not have been fatal. The death is entirely and only the result of both shots. This case is like that given by the American author Prosser, in which the oil put in the stream by both defendants is ignited, and burns the plaintiff's barn. It is also like the wholly artificial case which I put to counsel in the course of argument, where two surgeons are simultaneously but independently operating on the claimant, each on one eye. Both are negligent, so that the sight in each eye is lost when it should not have been. But of course the combined effect is that the claimant is entirely blind: that is the single indivisible damage for which he is entitled to be compensated in full by either defendant.
20 But this is not the only kind of instance of concurrent torts. It is the first of the two types identified by Professor Glanville Williams in the passage from his work which I have cited. The second, it will be remembered, was "where either cause would be sufficient of itself to produce the consequence, as where two persons independently shoot at another at the same time, both shots being fatal". Is there a third kind of instance? I have in mind a case where it is shown that (a) each tortfeasor caused some part of the damage, but (b) neither caused the whole, and (c) some part (but not all) of the damage would therefore have been occasioned to the claimant if only one tort - either of them - had been committed, but (c) on the evidence it is impossible to identify with any precision what part or element of the damage had been caused by which defendant.
21 This putative third instance corresponds, broadly at least, to the facts of the present case, though (c) above perhaps overstates the position at least as regards some of the facts as they are set out in the medical experts' agreed document which I have cited in full above at paragraph 7. However that may be, there is I think an objection in principle to the inclusion of this kind of case within the class of concurrent torts. I would express it thus. It would plainly be unjust to proceed on the footing that a defendant is responsible for the whole of the claimant's damage when, demonstrably, he is not. It has to be remembered that once a case is categorised as one of concurrent torts, then the rule is that each tortfeasor is liable for the whole of the damage in question; this is the principle of the common law, and it is temporally and logically prior to the statutes of 1935 and 1978, by whose construction it is entirely unaffected.
22 I believe, with respect, that this reasoning is consistent with what was said by Mustill J (as he then was) in Thonpson v Smiths Shiprepairers [1984] 1 QB 405, first at 441A-B:
"[I]t [sc. Lord Devlin's statement of the law as to concurrent tortfeasors] does not in my opinion demand the conclusion that where the court knows that the initial stage of the damage was caused by A (and not B) and that the latter stage was caused by B (and not A), it is obliged by law to proceed (contrary to the true facts) on the assumption that the faults of each had caused the whole damage."
Then in this passage at 443H-444A:
"... I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment."
23 Upon the correct view of the sense to be accorded to "concurrent" tortfeasors, the case before us is, in my judgment, not one of concurrent torts. The reason is that on the evidence the respective torts committed by the defendants were the causes of distinct aspects of the claimant's overall psychiatric condition, and it is positively established that neither caused the whole of it. So much is demonstrated by the document which sets out the conclusions of the three experts. It is true that this agreed evidence does not purport to distribute causative responsibility for the various aspects of the claimant's psychopathology between the defendants with any such degree of precision as would allow for an exact quantification by the trial court; no doubt any attempt to do so would be highly artificial. But the lack of it cannot drive the case into the regime of the 1978 Act to which, in principle, it does not belong. This view of the matter is by no means displaced by consideration of the oral testimony of the doctors, to which Mr Livesey invited our attention. The fact-finding court's duty is to arrive at a just conclusion on the evidence as to the respective damage caused by each defendant, even if it can only do it on a broad-brush basis which then has to be translated into percentages.
24 In order to underline my view of this aspect of the matter, I repeat for
convenience that part of the doctors' agreed document headed "Aetiology":
"The aetiology of the individual disorders is considered to be:
PTSD. This is thought to be largely due to the assault but some
symptoms are related to the operation.
A severe depressive disorder of psychotic intensity. This is thought
to be largely a psychological reaction to the loss of the eye.
A specific phobia of black people with paranoid elaboration. This is
thought to be due to the assault, and subsequent threats, court attendances and
identification parades. It has also been reinforced by subsequent events such
as the attack on his brother by a black man.
Enduring personality change. This is thought to be due to the
synergistic effect of the depression and the PTSD and probably would not have
developed [the word "occurred" follows but is struck through] if Mr
Rahman had not lost his vision in one eye."
It is at once plain beyond doubt that neither tort caused the whole of the
claimant's psychological deficit. Thus for instance the phobia of black people
was entirely caused by the assault. The PTSD is largely due to the assault.
But if this is to be characterised as a case of concurrent torts, and if only
the second defendant had been sued, the claimant would have recovered damages
for these aspects in their entirety as surely as in fact he has done by suing
both, and would have so recovered against a defendant who it is affirmatively
established was not responsible, certainly not wholly responsible, for those
aspects of his injury. That would plainly be unjust; and it would confound the
very basis, as I have explained it in paragraph 18, upon which the common law
has built the doctrine of concurrent torts. It also shows why, in my judgment,
one cannot fix on the adverb "largely" (which is used both in relation to the
PTSD and the claimant's depression) so as to draw a rough-and-ready conclusion
to the effect that this is really an indivisible injury and therefore "same
damage" within s.1(1) of the Act of 1978.
25 For these reasons I would reject the principal thrust of Mr Livesey's
submissions, which urged the application of the 1978 Act. It has no
application on the facts of the case. In light of this conclusion counsel
would I think agree that the judge was wrong to temper his conclusions as to
the respective "causative potency" of each defendant's tort by a separate and
free-standing reliance on the extent of the first defendants' blameworthiness;
it is common ground between them, and I have referred to this in passing at
paragraph 16 above, that blame is only relevant to the assessment of
contribution between concurrent tortfeasors under the Act of 1978, by virtue of
the use of the expression in s.2(1) "just and equitable". However as I
will show, blameworthiness or culpability cannot altogether be dismissed as
irrelevant to the second issue in the case, to which I now turn.
26 The Second Issue
The issue here, as I expressed it in paragraph 15, is whether the first
defendants should be held responsible for any loss or damage beyond that which
the claimant would have suffered if the eye injury, caused by the second
defendants' negligence, had not occurred. As with the first issue, then, we
are here concerned with a question of causation. Mr Walker submits that this
is not a case in which it is suggested that the negligent eye operation was
itself a foreseeable consequence of his clients' negligence, so as to fix them
with liability for it; and, so far as it goes, that is plainly right. Mr
Livesey accepts that the second defendants are solely responsible for the loss
of the eye. But then, says Mr Walker, if the first defendants are not
responsible for the loss of the eye, they cannot be responsible for any of the
consequences of that loss. In assessing the damages payable by the first
defendants, the question for the court is, and is only, what would the position
have been if there had been no second tort: once any possibility of concurrent
torts is rejected on the facts (as I have rejected it) there is no other
question to be asked.
27 The force of this argument, when it is properly analysed, rests on two
long-standing principles of the law of tort: (1) a tortfeasor takes his victim
as he finds him: if he has an "eggshell skull" - that is, he is in some respect
(unknown to the tortfeasor) especially vulnerable - and the tortfeasor breaks
the skull, he has to pay for it even though his negligence would have
occasioned nothing more than a headache in a normal man. (2) Novus actus
interveniens: the proposition that a supervening negligent act or omission,
inflicting further damage upon a claimant, will always break the chain of
causation flowing from an injury suffered by him in consequence of an earlier
tort. Either or both of these propositions might assist Mr Walker's submission
that the only question is what would the position have been absent the second
tort.
28 I will start with novus actus interveniens. Mr Livesey submitted (in
fact in the context of his argument upon the Act of 1978) that a tortious act,
in this case his clients' negligence in causing the loss of the claimant's eye,
does not necessarily break the chain of causation flowing from an earlier tort
- here, of course, the assault which the first defendants failed to prevent.
He relied on authority of the High Court of Australia to the effect that
"[w]hether a tortfeasor can avoid liability for a subsequent injury
tortiously inflicted by a second tortfeasor depends on whether or not the
subsequent tort and its consequences are themselves foreseeable consequences of
the first tortfeasor's negligence", and "[w]here an injury is
exacerbated by medical treatment, the exacerbation may easily be regarded as a
foreseeable consequence for which the first tortfeasor is liable":
Mahony v Kruschich [1985] 156 CLR 522, 522 (headnote). The English
authorities are with deference somewhat equivocal upon the question. In
Robinson v Post Office [1974] 1 WLR 1176, a decision of this Court, it
was conceded that the chain of causation was broken by a later negligent act.
In Hogan v Bentinck [1949] 1 AER 588 in their Lordships' House, Lord
Simonds regarded such a question as one of fact (592G-H, 593D-E). Lord Normand
(596G-H) considered that it was "axiomatic" that later negligence by a doctor
(so in principle, presumably anyone's later negligence) would amount to a "new
cause" and so break the chain of causation flowing from the original accident;
but with respect whether this is being put as a legal rule is, perhaps, not
entirely clear. Lord Reid, who, however, was in the minority as to the result
of the case, considered (607F-G) that "grave lack of skill or care on the part
of the doctor" would amount to a novus actus interveniens.
29 On these materials it does not seem to me to be established as a rule of law
that later negligence always extinguishes the causative potency of an earlier
tort. Nor should it be. The law is that every tortfeasor should compensate
the injured claimant in respect of that loss and damage for which he should
justly be held responsible. To make that principle good, it is important that
the elusive conception of causation should not be frozen into constricting
rules. It is true that the idea of a supervening cause - novus actus
interveniens - is generally deployed in cases where it is suggested that
the first tortfeasor should bear responsibility for the effects of the second
tort, and this is not such a case: Mr Livesey accepts that the second
defendants are solely responsible for the loss of the eye. However the spirit
of novus actus rattles its chains at the suggestion that the first
defendants should bear some responsibility, given that this is not a case of
concurrent torts, for the continuing effects of the claimant's psychological
damage after the loss of vision in the right eye.
30 As for the "eggshell skull", this is, as Mr Livesey submitted, a principle
designed to protect vulnerable claimants, not tortfeasors. It is a
modification of the usual rule that a negligent defendant is liable for damage
which he should reasonably foresee. Its justification is that it promotes the
basic rule in this area, which as I have said is that every tortfeasor should
compensate the injured claimant in respect of that loss and damage for which he
should justly be held responsible. Accordingly, if it were applied as a rule
of thumb tending to excuse the first tortfeasor for damage for which he should
so be held responsible, it would cut across the grain of justice. It cannot be
so applied.
31 The problem at the heart of this case rests in the law's attempts to contain
the kaleidoscopic nature of the concept of causation within a decent and
rational system for the compensation of innocent persons who suffer injury by
reason of other people's wrongdoings. The common law has on the whole achieved
just results, but the approach has been heavily pragmatic. Baker v
Willoughby [1970] AC 467 was a case in which the effects of the first tort,
which caused injuries to the claimant's left leg, were obliterated by the
second: he was shot in the same leg in an armed robbery, and the leg had to be
amputated. The House of Lords held that the damages flowing from the first
tort did not fall to be reduced. Contrast Jobling v Associated Dairies
[1982] AC 794, in which the claimant suffered an accident at work which
left him with continuing disabling back pain. Before the trial of his claim he
was diagnosed as suffering from a disease, in no way connected with the
accident, which would in any event have wholly disabled him. The House held
that the supervening disease had to be taken into account, effectively in
reduction of the claimant's damages, since "the court must provide just and
sufficient but not excessive compensation, taking all factors into account"
(headnote at 795B).
32 Although the reasoning in Jobling involved the raising of some
judicial eyebrows as to the approach taken by the House in Baker, with
great respect I see no inconsistency whatever between the two cases. Once it
is recognised that the first principle is that every tortfeasor should
compensate the injured claimant in respect of that loss and damage for which he
should justly be held responsible, the metaphysics of causation can be kept in
their proper place: of themselves they offered in any event no hope of a
solution of the problems which confront the courts in this and other areas.
The law has dug no deeper in the philosophical thickets of causation than to
distinguish between a causa sine qua non and a causa causans.
The latter is an empty tautology. The former proves everything, and therefore
nothing: if A kills B by stabbing him, the birth of either of them 30 years
before is as much a causa sine qua non of the death as is the wielding
of the knife. So the law makes appeal to the notion of a proximate
cause; but how proximate does it have to be? As a concept, it tells one
nothing.
33 So in all these cases the real question is, what is the damage for which the
defendant under consideration should be held responsible. The nature of
his duty (here, the common law duty of care) is relevant; causation, certainly,
will be relevant - but it will fall to be viewed, and in truth can only be
understood, in light of the answer to the question, from what kind of harm was
it the defendant's duty to guard the claimant. That, if I may say so, is I
think the insight of Lord Hoffman's lecture to the Chancery Bar Association on
15 June 1999 on "Common Sense and Causing Loss". Novus actus
interveniens, the eggshell skull, and (in the case of multiple torts) the
concept of concurrent tortfeasors are all no more and no less than tools or
mechanisms which the law has developed to articulate in practice the extent of
any liable defendant's responsibility for the loss and damage which the
claimant has suffered.
34 CONCLUSIONS
I reject Mr Walker's submission that the second defendants' inevitable
acceptance of responsibility for loss of the claimant's eye possesses an
absolving effect upon his clients' responsibility for the psychological
sequelae once the eye injury had been inflicted. I recall the judge's
finding at 16D: "the two sets of effects have a synergistic interaction, in
that each tends to make the other worse." That is not inconsistent with
the detail in the experts' agreed document, and as a rough overview is plainly
justified on the facts of the case. Once one leaves behind, as for reasons I
have given one should, the dogmas of novus actus and eggshell skulls,
there is nothing in the way of a sensible finding that while the second
defendants obviously (and exclusively) caused the right eye blindness,
thereafter each tort had its part to play in the claimant's suffering.
35 On that approach, the judge's view that the apportionment should be three
quarters/one quarter against the second defendants cannot, as it seems to me,
be criticised. He was however wrong to skew his finding to two thirds/one
third on account of the first defendants' blameworthiness. Blame operates in
the world of the 1978 Act, because by definition it is impossible to distribute
"causative potency" between concurrent tortfeasors. In addition, my own
reasoning set out in this judgment impels, I think, the conclusion that blame
may be material to the application or disapplication in any particular case of
our ideas of novus actus and eggshell skulls. But in this case, the
premise of the judge's approach is that they do not apply; and that premise
itself contains an implicit recognition of the blameworthiness of the first
defendants.
36 However the three quarters/one quarter apportionment should not apply (as the judge applied it) to every head of damage save general damages for pain, suffering and loss of amenity. The first defendants should be liable in full for the first three years loss of earnings (together with the small item for removal expenses, £578) since Mr Walker correctly conceded that his clients were entirely responsible for those items. The fact that, as in fairness I should acknowledge, the concession was made in the context of a submission that those heads (plus the £7,500 general damages) ought to represent the whole of the first defendants' responsibility does not rob it of its essential accuracy. Here, the question what would the position have been if the second tort had not been committed is highly material: the second defendants are not to be held responsible for damage the whole of which had already been inflicted on the claimant by the first defendants.
37 There are some other minor adjustments that should be made. The second
defendants should bear the whole responsibility for increased insurance
premiums, past and future. There is an item for travel costs which is agreed
as a figure but no one seems to know to what it refers; in which case I would
divide it 50:50. The future removal expenses (£3,000) should, I think,
also be borne 50:50. If my Lords agree with the approach I would take, no
doubt counsel will agree the consequent mathematics. Further, since it is a
consequence of this judgment, if my Lords agree in the result, that the amount
of damages to be awarded against the first defendants may fall to be increased,
an appropriate amendment to the claimant's notice of appeal is needed, for
which I would give leave. In light of the arguments which counsel came to
present and to meet, I see no prejudice to any party in carrying the effect of
the judgment into a practical result.
38 There is a wholly free-standing issue. As I stated at the outset Mr Brennan seeks permission out of time to appeal the judge's findings as to general damages in light of the judgment of this Court (constituted by five judges presided over by the Master of the Rolls) in Heil v Rankin & anor. At paragraph 31 of the judgment of the court in that case it was stated:
"... our decisions will be a guide for future decisions. This will be irrespective of when the tort occurred. If we modify the existing guidelines we will do so retrospectively."
In my judgment this court was not thereby contemplating the wholesale application of the new guidelines to every personal injury case in which there happened to be an outstanding appeal to this court at the time of the judgment in Heil. Appeals which already include some complaint as to the quantum of general damages may be in a different case; I express no view about that. I am quite satisfied that there is no justification in granting permission to appeal the general damages in this case.
LORD JUSTICE SCHIEMANN:
I agree.
LORD JUSTICE HENRY:
I also agree.
(Order does not form part of the approved judgment)