This also coincides with the balancing of probabilities since it was certain that the claimant would be unfit for work by a certain date. Although some could argue against this in the sense that the amount of damages received by the claimant will be based on luck depending upon whether their medical condition arises (assuming they have one) before the trial or after. It is useful to have looked at this case since it too involves the circumstance of two independent events being causal factors to a claimant's injury. In a case like this the but-for test is applied on the balance of probabilities.
It can be shown therefore that when applying the but-for test both Harry and Ingrid may be found to have caused injury. The second part of the causal link involves looking at the remoteness of the damage and whether it would be reasonably foreseeable. This can be established for Harry with relation to Gerry's limp but not with regard to the whole injury (the amputation of the leg) because it could be argued that this injury is too remote from the negligent act of Harry.
The question with Ingrid is whether she will be liable to have caused the whole injury or just the additional injury to Gerry. It can be found that Ingrid is only liable for the additional injury that she caused to Gerry following the principle in Performance Cars Ltd. However some could argue that this would be unfair if the original limp had no effect on the impact of the second injury. i.e if the leg would have had to be amputated anyway, even if the first accident had not occurred.
Would your answer be different if: (i) Gerry could have avoided being hit by Ingrid had he not been suffering from a limp because of the initial fall; (ii) it emerges that Gerry has been suffering all along from a rare wasting disease which would have left him crippled within a short space of returning to work? With regard to situation (i), the circumstance would change in respect to the first injury being related to the second injury.
The two accidents would no longer be unrelated, unconnected events and would involve looking at issues of cumulative and alternative causes. The question could then be asked whether the actual limp of Gerry is the cause of the accident and hence, the amputation of the leg, or would the carelessness of Ingrid be the cause? The case of Wilsher v. Essex can be looked at if this situation arose. In the case of Wilsher v. Essex the claimant suffered injury to his retina after being born prematurely and receiving too much oxygen by the carelessness of the doctors. However it was found that the defendants could not be liable since there were a number of factors that could cause the condition in premature babies. Because medical evidence could not show that the condition was caused by the carelessness of the doctors, the claim failed.
What was argued in this case was whether the negligence of the doctors could have been capable of causing or materially contributing to the claimants' condition. It was found on a balance of probabilities that it did not. This case, as with that of Fairchild v. Glenhaven Funeral Services Ltd had the problem of not knowing which factor (or breach of duty) could be determined to be the actual cause of the injury. It could be argued to be too remote to hold Harry liable for injuries that occur after the actual injury at work and so this argument of cumulative cause could be lost.
However, Harry could be held responsible for the cumulative consequences of both injuries since it was his Gerry's initial incapacity that had prevented him from getting out of the way. The amount of damages that Ingrid has to pay may be reduced if it could be found that Gerry was contributory negligent in putting himself in that situation anyway. However this could be unlikely since it is quite reasonable that he would want to cross the road and his incapacity should not limit this. Otherwise, Ingrid's liability will not change.
When looking at the possible situation of (ii) the facts of this situation are sufficiently similar to those of Jobling v. Associated Dairies Ltd. Because Gerry would have been crippled anyway then the but-for test when applied would absolve both Harry and Ingrid from paying for the harm after the point in time when the disease sets in which would be within a short space of time of Gerry returning to work. They would both still be liable for their injuries up until that point and have to pay the required damages.