Spencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd)

A claimant’s conduct following a tortious personal injury breaks the chain of causation only when, on a fact-sensitive value judgment, it would be unfair to attribute the further injury to the original tortfeasor. Ordinary imprudence may amount to contributory negligence without constituting a new intervening act. The required degree of unreasonable conduct is high, although it need not satisfy a rigid test of recklessness or deliberateness.

The foreseeable kind of consequence must be identified broadly. Where personal injury is foreseeable, liability is not confined to the precise mechanism or extent of later injury. A further injury caused by the instability resulting from an amputation may therefore remain within the original tortfeasor’s responsibility, subject to an appropriate reduction for contributory negligence.

The claimant suffered a knee injury through the negligence of a fellow employee for which his employer was vicariously liable. Persistent pain led to an above-knee amputation. While his damages claim remained unresolved, he fell on a petrol station forecourt after leaving his prosthesis and walking sticks in his car. The fall caused permanent injury to his remaining leg and confined him to a wheelchair.

Judge Bullimore in Sheffield County Court held that the employer remained liable for the consequences of the fall, but reduced the relevant damages by one third for contributory negligence. The employer appealed. The central issue was whether the claimant’s conduct constituted a new intervening act which broke the chain of causation, or merely contributory negligence reducing the recoverable damages.

1. The appeal was dismissed unanimously. The employer remained liable for the consequences of the petrol station fall, subject to the unchallenged one-third reduction for contributory negligence.

2. Per Sedley LJ, with whom Longmore LJ agreed, the purpose of the inquiry into unreasonable intervening conduct is to determine when a consequence has become too remote. The law ends a causally connected sequence when continued attribution of responsibility would be unfair. In personal injury cases, that point may be reached where the claimant has in substance brought about the further injury rather than the tortfeasor.

3. The mere foreseeability of a claimant’s unreasonable conduct does not prevent it from breaking the chain. Nevertheless, the degree of unreasonable conduct required by McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621 is high. The trial judge was entitled to conclude that undertaking an everyday task without a prosthesis or walking sticks was a misjudgement attracting contributory negligence, rather than conduct making it unfair to hold the employer principally responsible.

4. Per Aikens LJ, foreseeability must be assessed at the time of the original breach and by reference to a reasonable employer and a hypothetical employee. The relevant kind of consequence was personal injury, not the precise sequence of amputation, refuelling and falling. Since personal injury and the amputation were within the foreseeable kind of consequence, further personal injury caused by the instability resulting from the amputation was also of a foreseeable kind.

5. The boundary between contributory negligence under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 and unreasonable conduct constituting a new intervening act cannot be precisely defined. The court must make a fact-sensitive value judgment about fairness and responsibility. A rigid requirement that the claimant’s conduct be reckless or deliberate was unsupported and unhelpful, although ordinary lack of reasonable care may justify reducing damages.

• Court of Appeal (Civil Division): The employer’s appeal was dismissed unanimously. The finding that the chain of causation remained intact, subject to a one-third reduction for contributory negligence, was upheld: [2009] EWCA Civ 1404.
• Sheffield County Court: Judge Bullimore held the employer liable for the consequences of the petrol station fall, but reduced the resulting damages by one third for the claimant’s contributory fault. Permission to cross-appeal that reduction was refused and not renewed.