Rahman v Arearose Ltd

For the purposes of Civil Liability (Contribution) Act 1978, “same damage” means a single indivisible injury for which there is no rational basis for objectively apportioning causative responsibility. The Act does not apply merely because precise apportionment is difficult. Where separate torts caused distinct aspects of psychiatric injury and neither caused the whole, the court must make the best broad assessment of the damage caused by each.

A later negligent act does not invariably extinguish the causal responsibility of an earlier tortfeasor. The governing question is the loss for which each defendant should justly be held responsible, viewed in light of the duty breached and the harm against which that duty required protection.

The claimant was assaulted while employed by the first defendant. He later lost sight in one eye following negligent surgery for an injury caused in the assault. The second defendant NHS trust admitted vicarious liability for the surgeon’s negligence.

Rougier J held both defendants liable and assessed the claimant’s psychiatric injury and consequential losses globally. He allocated two thirds of the relevant damages to the second defendant and one third to the first, having taken account of causative potency and blameworthiness.

The first defendant appealed the allocation. The central issues were whether the defendants were liable for the same damage under the Civil Liability (Contribution) Act 1978, and whether the first defendant remained responsible for psychiatric consequences after the negligent eye injury.

1. Appeal allowed in part. Laws LJ gave the judgment of the court, with Schiemann and Henry LJJ agreeing. The psychological injury was not “same damage” within section 1(1) of the Civil Liability (Contribution) Act 1978. The defendants were not concurrent tortfeasors in respect of it.
2. Concurrent tortfeasors each answer for a single indivisible injury because there is no rational basis for allocating its causation between them. Here, the expert evidence established that the assault and the negligent operation caused distinct aspects of the claimant’s psychiatric condition, and that neither tort caused all of it. Difficulty in making an exact allocation did not convert the injury into indivisible damage. The fact-finding court had to make its best, necessarily broad, assessment of each defendant’s causative responsibility.
3. Blameworthiness could not operate as a separate adjustment to causative allocations outside the statutory contribution regime. The judge was therefore wrong to change his causative assessment by increasing the first defendant’s share because of its greater culpability.
4. The first defendant’s responsibility did not end at the point of the negligent operation. A later negligent act does not automatically break the chain of causation, and the eggshell-skull principle cannot be used to relieve an earlier tortfeasor of loss for which it remains justly responsible. The decisive inquiry was the damage for which the particular defendant should be held responsible, having regard to the nature of its duty and the harm against which it had to protect the claimant.
5. The first defendant exclusively caused some losses, including the first three years’ loss of earnings and removal expenses of £578. The second defendant exclusively caused increased insurance premiums. For the continuing synergistic psychiatric consequences, the proper causative allocation was three quarters to the second defendant and one quarter to the first; future removal expenses and unidentified travel costs were to be divided equally.
6. The court refused the claimant permission to pursue an out-of-time quantum appeal based on Heil v Rankin & anor. Its guidance on general damages did not justify wholesale reopening of every extant personal-injury appeal.

• Court of Appeal (Civil Division) — In [2000] EWCA Civ 190, the court allowed the first defendant’s appeal in part and varied the allocation of damages.
• High Court, Queen’s Bench Division — Rougier J, on 18 February 1999, found the first defendant liable alongside the second defendant, whose liability had been admitted, and allocated the relevant damages two thirds to the second defendant and one third to the first.