Dalling v R J Heale & Co Ltd

In assessing whether a later injury is attributable to an earlier tort, the court first asks whether the tort causally contributed to the injury. It then asks whether, despite that causal link, the loss falls within the defendant’s scope of liability. That second inquiry is a value judgment informed by fairness, justice and reasonableness. It includes consideration of whether the claimant was substantially responsible for the later injury and whether the claimant’s conduct was a free and voluntary act. A claimant’s impaired ability to control the relevant conduct may mean that the conduct does not break the chain of causation. The same facts may nevertheless justify a reduction for contributory negligence where responsibility is shared between claimant and defendant.

The claimant suffered a severe head injury in an accident at work in 2005. Liability for that accident had been compromised at 75 per cent of the full verdict damages. The claimant later suffered a further head injury after falling backwards in a public house while heavily intoxicated. The trial judge found that the first injury had impaired the claimant’s ability to control his drinking and had causally contributed to the second accident, but reduced damages for the second injury by one third for contributory negligence.

The defendant appealed against liability for the second injury, arguing that the claimant’s voluntary decision to become drunk was a novus actus interveniens. The central issue was whether the claimant’s conduct broke the chain of causation or otherwise made it unfair to hold the defendant liable.

1. Appeal dismissed. The defendant’s challenge concerned only damages attributable to the second accident. The defendant accepted that the trial judge was entitled, on the evidence, to find a causal relationship between the 2005 tort and the 2008 injury.

2. The assessment of liability for causally connected loss involves two stages. First, the court determines whether the defendant’s wrongful conduct causally contributed to the loss, ordinarily as a predominantly factual inquiry. Secondly, it determines the extent of the loss for which the defendant ought fairly, reasonably or justly to be held liable. The second stage sets the legal limit to causally connected losses and includes familiar questions of remoteness, intervening cause and mitigation.

3. Whether the claimant was substantially responsible for the later injury is relevant to the second stage. A claimant’s independent, voluntary and informed act may break the chain of causation, or may be regarded as forming no part of the causal chain. Here, however, the first head injury had impaired, but had not wholly destroyed, the claimant’s ability to control his drinking. His getting drunk was therefore not an act of free volition. The claimant remained partly responsible, but the defendant was also partly responsible.

4. There was no inconsistency in finding that the second injury was caused partly by the defendant’s tort and partly by the claimant’s own fault, while reducing damages for contributory negligence. The trial judge’s apportionment of responsibility, with the defendant bearing two thirds and the claimant one third, was not challenged.

• Court of Appeal (Civil Division) — The court dismissed the defendant’s appeal: [2011] EWCA Civ 365.
• Swansea County Court — On 30 March 2010, HH Judge Seys-Llewellyn assessed damages arising from the 2005 workplace accident and held the defendant liable for the consequences of the 2008 accident, subject to a one-third reduction for contributory negligence.