Ellis v The Environment Agency

At the permission stage, an appeal was arguable on whether a later accident could be attributed to an earlier injury on a but for basis while damages were apportioned between competing causes. The appellate judge considered that apportionment might be inappropriate and that the causal finding was likely correct, but held that the issue warranted determination by a full court. An apportionment approach developed in vibration white finger litigation should not automatically be extended to materially different circumstances. The merits were not finally determined.

Ellis v The Environment Agency arose from an appeal against a judgment of HHJ Hollis in the Hasting County Court dated 19 November 2007. The claimant had suffered a back injury in a 1998 workplace accident. The trial judge found that continuing back problems caused a fall downstairs in April 2000, which resulted in serious knee injury and consequential losses. The defendant’s primary liability for the 1998 accident had been conceded.

The trial judge awarded damages for the consequences of the later accident, subject to a 10 per cent reduction reflecting future constitutional back problems and the contribution of an unrelated 1999 accident. The appellant argued that the judge had accepted an expert apportionment attributing only 20 per cent of the later consequences to the 1998 accident. The central issue on the renewed application was whether the causation and apportionment approach was arguable on appeal.

1. Permission granted. The renewed application was granted. The Court of Appeal did not finally determine the merits of the causation or apportionment issues.
2. The trial judge had found, on the balance of probabilities, that there was a continuing history of significant back problems following the 1998 accident and that, but for that accident, the fall downstairs in 2000 would not have occurred. Lady Justice Smith considered that the judge was entitled, and likely correct, to treat that finding as establishing the chain of causation.
3. The deduction of 10 per cent from the damages did not necessarily show that the trial judge had accepted the expert’s percentage apportionment. The appellant’s argument that liability should be limited to 20 per cent of the consequences of the 2000 accident was therefore arguable but not established.
4. Lady Justice Smith was not persuaded that apportionment was appropriate in these circumstances. Although she had previously apportioned damages in the context of vibration white finger, her present view was that it was inappropriate to extend that approach automatically to this case. The point remained sufficiently arguable to require consideration by a full court.
5. The appeal was directed to be heard by three judges, including at least one Lord Justice with significant personal injury expertise.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal, permission was granted. The proposed appeal was to be heard by a court of three.
• Hasting County Court: HHJ Hollis awarded damages for the consequences of the April 2000 accident, subject to a 10 per cent reduction.