Baker v Willoughby

Personal injury damages compensate consequential loss rather than the physical injury itself. A later independent injury does not extinguish damages for continuing loss caused by the first tort merely because it becomes a concurrent cause. Damages fall only to the extent that the later event diminishes the disability or shortens the period of loss.

Successive tortfeasors take the claimant as they find him. The first remains liable for the original loss, while the later tortfeasor answers only for additional loss.

Apportionment for contributory negligence requires separate consideration of causation and blameworthiness. Equal opportunity to observe the danger creates no presumption of equal blame. An appellate court should not replace the trial judge's assessment unless a discernible error of approach is shown.

The respondent motorist knocked down the appellant pedestrian. Donaldson J found both parties negligent, attributed 75 per cent of the responsibility to the respondent and assessed damages at £1,600 before reducing them to £1,200 for contributory negligence. His decision at first instance in Baker v Willoughby was reported at [1968] 2 W.L.R. 1138.

Before trial, robbers shot the appellant in his already injured leg, which was then amputated. The Court of Appeal changed the apportionment to equal responsibility and accepted that the amputation had displaced the continuing consequences of the road accident.

The appeal concerned whether the trial judge's apportionment should have been altered and whether the independent later injury reduced the damages recoverable from the original tortfeasor.

1. Appeal allowed unanimously. Lord Reid delivered the leading speech. Lord Guest, Viscount Dilhorne and Lord Donovan expressly agreed with it. Lord Pearson agreed with the restoration of the trial judge's apportionment and reached the same conclusion on damages through additional reasoning. The judgment of Donaldson J was restored.

2. Per Lord Reid, with the agreement of the whole House on this issue, an appellate court should not disturb a trial judge's apportionment unless a discernible error of approach is shown. Causation and blameworthiness are separate elements of the assessment. Even where both parties could see one another, equal causative responsibility supplied no presumption of equal blameworthiness. A fast-moving motorist could properly bear substantially greater blame than a pedestrian.

3. Per Lord Reid, in reasoning commanding a majority, damages compensate the loss resulting from physical injury rather than the injured limb itself. The relevant losses included impaired mobility, loss of amenities and reduced earning capacity. The amputation had not diminished those losses or shortened the period for which the appellant would experience them.

4. Per Lord Reid, an existing disability may have two concurrent causes. A later independent injury reduces damages where it diminishes the disability, shortens its duration or makes clear that a predicted loss will never occur. It does not reduce damages merely by becoming a concurrent cause of loss which the original injury would independently have continued to produce. The principle in Harwood v Wyken Colliery Company [1913] 2 K.B. 158 supported that conclusion.

5. Per Lord Reid, Hogan v Bentinck Collieries [1949] 1 All E.R. 588 did not assist the respondent. As explained through Rothwell v Caverswall Stone Co [1944] 2 All E.R. 350, incapacity may be attributed to a new cause alone where the original injury would otherwise have ceased to operate. That was materially different from a continuing original disability.

6. Per Lord Reid, each wrongdoer takes the claimant or property as found. The original tortfeasor remains responsible for the loss originally caused, while the later tortfeasor is responsible only for additional loss. Performance Cars v Abraham [1962] 1 QB 33 exemplified that allocation.

7. Lord Pearson, in a concurring speech, described the original injury as a continuing devaluation of the appellant's capacities. The original tortfeasor remained liable for that devaluation unless it diminished or its duration was shortened. A later tortfeasor would answer for the additional devaluation. His approach drew support from Harwood v Wyken Colliery Company and Long v Thiessen and Lalibert [1968] 65 Western Weekly Reporter 577.

8. Per Lord Reid, the appellant could not recover for pain which the amputation meant he would never suffer. The evidence did not establish a material reduction on that account, and the respondent did not pursue the point. Donaldson J's assessment of damages and apportionment was therefore restored.

1. House of Lords: The appeal in Baker v Willoughby [1970] AC 467 was allowed unanimously. The judgment of Donaldson J was restored as to both apportionment and damages.

2. Court of Appeal: The court changed the apportionment from 75 per cent responsibility against the respondent to equal responsibility. It also accepted that the later amputation displaced the continuing consequences of the original injury.

3. High Court, Donaldson J: The judge attributed 75 per cent responsibility to the respondent, assessed damages at £1,600 and awarded £1,200 after contributory negligence. He rejected the contention that the later amputation extinguished the respondent's continuing liability. The first-instance judgment was reported as Baker v Willoughby [1968] 2 W.L.R. 1138.