Jobling v Associated Dairies Ltd

Damages for loss of earnings compensate the claimant for the position in which the claimant would have been but for the tort. They must not place the claimant in a better position.

An independent illness which would have curtailed the claimant’s earning capacity is an ordinary vicissitude of life. If that illness becomes disabling before trial, the court must use the known facts instead of estimating the risk. The tortfeasor is therefore not liable for earnings which the claimant would have lost through the illness in any event. This applies whether the illness was latent at the time of the tort or began later.

The concurrent-cause reasoning in Baker v Willoughby could not govern a supervening non-tortious illness. Successive torts may require a different approach to secure full compensation.

The appellant injured his back at work through the respondent employer’s breach of duty. The injury reduced his earning capacity by 50 per cent. Before trial, he developed unrelated spondylotic myelopathy which, by the end of 1976, made him wholly incapable of work.

Reeve J treated the original injury as continuing to cause a 50 per cent loss of earning capacity throughout the appellant’s prospective working life. He considered himself bound by Baker v Willoughby [1970] AC 467 to disregard the later disability. The Court of Appeal unanimously reversed that part of the award in [1980] 3 WLR 704.

The central issue was whether damages for earnings lost through the tort should continue after an independent, non-tortious illness had itself made the appellant wholly incapable of earning.

1. The appeal was dismissed unanimously. The House affirmed the Court of Appeal’s conclusion that the respondent was not liable for loss of earnings accruing after the unrelated myelopathy had itself made the appellant wholly incapable of work.

2. Per Lord Keith of Kinkel and Lord Bridge of Harwich, the object of compensatory damages is to place the injured person, so far as money can, in the position which would have existed without the tort, but in no better position. The comparison is between the claimant’s actual circumstances and the circumstances which would probably have existed had the tort not occurred.

3. Per Lord Russell of Killowen, Lord Keith and Lord Bridge, illness and other ordinary vicissitudes capable of shortening working life must be reflected when future earnings are assessed. A court ordinarily estimates those possibilities by applying an appropriate discount. Where an independent disabling event has already occurred before trial, knowledge replaces estimation. Since the myelopathy would have extinguished the appellant’s earning capacity even without the back injury, damages could not compensate a notional continuing earnings loss after that point.

4. Per Lord Edmund-Davies, Lord Russell, Lord Keith and Lord Bridge, it was irrelevant whether the illness existed latently at the date of the tort or originated later. The suggested distinction lacked support in principle, conflicted with the vicissitudes doctrine and would create serious medical uncertainty.

5. The broad concurrent-cause reasoning in Baker v Willoughby [1970] AC 467 did not govern an independent non-tortious illness. Lord Keith considered its ratio unacceptable in its full breadth, while preserving its practical result for successive torts. Lord Bridge considered that ratio unsustainable but would leave the correct treatment of successive torts open. Lord Edmund-Davies declined to follow its route, though the correctness of its result on its own facts had not been challenged. Lord Russell likewise declined to extend it while expressing no disagreement with its result.

6. Lord Wilberforce agreed that the illness should be taken into account. He emphasised that supervening-event cases may resist a universal logical rule and require just and sufficient, but not excessive, compensation after considering all relevant circumstances.

1. House of Lords: The appeal was dismissed unanimously and the order of the Court of Appeal was affirmed. The respondent’s costs were ordered to be paid from the Legal Aid Fund under section 13 of the Legal Aid Act 1974, and the appellant’s costs were to be taxed under schedule 2.

2. Court of Appeal: Stephenson and Ackner LJJ and Dame Elizabeth Lane unanimously reversed the trial judge’s award for earnings lost after the myelopathy became totally disabling: [1980] 3 WLR 704.

3. High Court: Reeve J held that Baker v Willoughby required the myelopathy to be disregarded. He awarded damages on the footing that the back injury would continue to reduce earning capacity by 50 per cent.