ON APPEAL FROM Swansea Civil Justice Centre
HH Judge Anthony Seys-Llewellyn
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE AIKENS
Stephen John Dalling
|- and -
|R J Heale & Co Ltd
Mr John Leighton Williams QC & Mr Peter Brooks (instructed by John Collins & Partners LLP) for the Defendant/Appellant
Hearing date : 18 January 2011
Crown Copyright ©
Lady Justice Smith:
This is the judgment of the court.
The factual background
Submissions to the judge
The judge's decision
"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. "
"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 25th October 2008. "
"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."
"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.
The appeal to this court -submissions
"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 (4th) 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."