Environment Agency v Ellis (Rev 1)

The ordinary rule in personal injury negligence cases is the but for test. A claimant who proves that the defendant’s negligence was a necessary cause of an indivisible injury may recover the whole loss, even though other causes contributed and the negligence was not the only or last cause. Apportionment is exceptional. The Holtby/Allen approach is principally confined to industrial disease or injury involving successive exposure, divisible harm and a fair basis for limiting liability to a quantifiable contribution. A pre-existing condition is not ordinarily a causative event merely because it affects vulnerability or would have caused later deterioration. An artificial expert percentage does not make a single injury divisible.

The Environment Agency admitted that an accident at work in June 1998 was caused by its negligence, but disputed the extent of the loss attributable to it. The claimant later fell at home in April 2000 when his back gave way, suffering serious knee injury. A further workplace accident in May 1999 and symptomless spinal degeneration were said to have contributed.

His Honour Judge Hollis found a causal continuum from the 1998 accident to the 2000 fall, but reduced damages by 10 per cent for the May 1999 accident and awarded 90 per cent of the assessed loss. The Agency appealed against that apportionment; the claimant cross-appealed for 100 per cent. The central issue was whether the ordinary but for rule should be displaced by apportionment principles developed for successive industrial exposure.

1. Appeal dismissed; cross-appeal allowed in part. The 10 per cent reduction was removed, and the claimant was entitled to 100 per cent of the assessed damages. The cross-appeal seeking recalculation of agreed damages because the appeal delayed final disposal was rejected.
2. Lord Justice May, with whom Lady Justice Hallett and Lord Justice Lawrence Collins agreed, held that the finding that the 1998 accident was a necessary cause of the April 2000 fall was an orthodox application of the ordinary but for test. The claimant had established the required causal link between the defendant’s negligence and the indivisible injury.
3. Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 ([2002] UKHL 22) showed that departure from the ordinary rule is exceptional and requires caution. Its modified approach addressed evidential difficulty in cases involving multiple possible tortfeasors and did not govern this case. Clough v First Choice Holidays [2006] EWCA Civ 15 confirmed that the but for shorthand does not require the defendant’s negligence to be the only, single or chronologically last cause, but a material contribution to risk alone is insufficient in a single-incident case.
4. The principles in Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086 and Allen v British Rail Engineering Ltd [2001] ICR 942 were exceptional principles principally confined to industrial disease or injury involving successive exposure, divisible effects and a justifiable basis for limiting liability to a quantifiable contribution. They did not apply to a single, indivisible injury. The May 1999 accident was not a full intervening event of the kind discussed in Corr v IBC Vehicles [2008] 2 WLR 499, and there was no free-standing principle giving apportioning effect to a contributory intervening event.
5. The pre-existing spinal degeneration was a condition akin to the eggshell skull situation, not a causative event comparable to negligent exposure. It was already reflected in the damages assessment. The expert’s artificial attribution of 10 per cent to the May 1999 accident could not make the injury divisible.

• Court of Appeal (Civil Division): The appeal from the Hastings County Court was dismissed. The claimant’s cross-appeal was allowed to remove the 10 per cent reduction, but rejected insofar as it sought recalculation of agreed damages.
• Hastings County Court: His Honour Judge Hollis found the 1998 accident causative of the later fall, rejected contributory negligence, and awarded 90 per cent of the assessed damages. The judgment was given on 30 March 2007 and the quantum order was dated 19 November 2007.