The defendants conduct

Gerry, a construction worker, injures his right leg when the ladder he is using at work collapses, causing him to fall. His employer Harry accepts responsibility for the accident. Gerry is told by his doctor to take six months off work in order to recover; he also warns him that in future he will always suffer from a slight limp because of the fall. Shortly before he is due to return to work, Gerry is hit when crossing the road by a car carelessly driven by Ingrid. Gerry's limp did not contribute to the accident. Gerry's right leg is further injured, and has to be amputated. Discuss his rights against Harry and Ingrid.

The issue that needs to be discussed under the tort of negligence in this situation is that of causation. This is because for both defendants a duty can be established and also a breach of that duty can be shown. With regard to Harry, he is the employer of Gerry and therefore owes him a duty of care in the workplace. Harry admits a breach of that duty and this can be shown in the problem where Harry "accepts responsibility for the accident". With regard to Ingrid, she is a driver on the road and thereby owes a duty of care to others whilst driving. There is a breach of this duty as expressed in the problem where Gerry is hit by a "car carelessly driven by Ingrid". Since both a duty and a breach can be established for both defendants the next issue to be looked at is with relation to causation.

It is perhaps best to examine each defendant separately in relation to their liability towards Gerry since both events occurred independently of each other. Firstly, Gerry's rights need to be discussed in relation to his employer, Harry. This starts as a typical situation of an industrial injury case whereby the employer is under a duty to care for the employee and where a breach of that duty leads to tortious actions provided causation can be established.

In order to establish causation for a tort claim there are two key principles of causation to be found. The first is what can be known as factual causation which involves asking the question of whether the harm would have occurred 'but for' the defendants conduct. This is often referred to as the 'but-for' test. The second principle is what can be known as legal causation and involves the court making an assessment on whether the link between the conduct and the ensuing loss are sufficiently close. This can often be referred to as 'remoteness'-asking the question of whether the chain of causation is broken or whether the original act is too remote.

When looking at the liability of Harry we need to apply the situation to the principles established. Firstly, the 'but-for' test is applied. Would the harm have occurred 'but-for' the accident at work? Under this test the claimant must prove the existence of a causal link on the balance of probabilities. In the defence of Harry he could argue that the harm would have occurred since Gerry ends up being knocked down by Ingrid and his leg needs to be amputated. This would be the case in a strict application of the 'but-for' test, however this is argued to lead to injustice since the claimant may not recover full compensation where they fall between two defendants in a strict application of the test.

This is because Ingrid would only be liable for the additional damage to the leg of Gerry and therefore he could only recover compensation for the additional suffering and incapacity. This point is illustrated in Performance Cars Ltd. V. Abraham. This case involved a car that had already suffered damage requiring a repaint that was involved in a further collision with the defendant. It was held that the defendant was only liable for the additional damage to the vehicle because he had damaged a car that was already damaged. The same principle here could be applied to this personal injury situation where Ingrid will only be responsible for the further injury.

The facts of this circumstance involving Gerry are sufficiently similar to that of Baker v. Willoughby and so the details of this case could be important and authorative. In this case the claimant, when crossing the road was knocked down by a motorist (the defendant) and his left leg and ankle were injured, the ankle becoming stiff. The leg was later amputated following a separate and unrelated incident in which robbers at work shot him.

The question raised in this case was, what effect did the second injury have on the defendants liability? The defendant tried to claim that the second injury submerged or obliterated the effect of the first and that all loss thereafter should be attributed to the robbers. He argued that he should only pay for the loss occurring between the car accident and the robbery since the robbery could be regarded as a supervening event of a tortious nature. Lord Reid dismissed these claims stating,

"A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities, which depend on the freedom of movement, and his inability to earn as much as he used to earn or could have earned if there had been no accident. In this case the second injury did not diminish any of these. So why should it be regarded as having obliterated or superseded them?"

The House of Lords in this case held that the defendant was liable for the full consequences of the injury he caused regardless of the second incident. Therefore, the defendant had to pay damages for the losses beyond the point at which the leg was amputated. This could be argued to be quite a fictional compensation considering the claimant was receiving damages for the pain and suffering that he would no longer endure, as the leg was not there.

Bearing this judgement in mind, Baker v. Willoughby is viewed as an exception to the normal application of the 'but-for' rule, justified by the principle of fully compensating the plaintiff for damage tortiously inflicted. This can be criticised however, since the arguments of Lord Reid fail to do justice to the basic point of the but-for test, in that since the claimant lost his leg anyway through a separate and unconnected event, the defendant should not be held responsible for what happened after that point in time. The two events were not concurrent causes of the claimant's total disability, as the first event had nothing to do with the complete loss of the leg.

The facts of this situation involving Gerry are sufficiently similar to those of Baker v. Willoughby since they both involve two separate, unconnected torts. Following the judgement in this case, Harry would still be liable for the loss incurred by Gerry, despite the second injury. As it was argued in Baker v. Willoughby there would only be a change in liability if before the assessment of the damages something happened which diminished the devaluation (i.e. a shortened life expectancy) and since there is not one in this instance, Harry would be liable for Gerry's loss of earnings for sixth months and for the permanent loss of ability of his right leg.

However, in Jobling v. Associated Dairies, the House of Lords also had to deal with an issue involving a claimant who injured his back at work but then was rendered totally unfit for work by the onset of a medical condition that developed after the original accident but was in no way connected to it. This again looked at the extent of liability for the defendant, assessing whether the employer was liable to cover damages of the loss of a full working life or only until the medical condition had set in.

At first sight the House of Lords reached what appeared to be a contradictory decision to that of Baker v. Willoughby when it was found that the claimant could only recover for loss until the medical condition had independently rendered him unfit for work. This seems fair in the sense that had the defendant been liable for the full working life of the claimant; the claimant would have been in a better position financially since he would have inevitably had to stop work. As stated by Lord Bridge,

" When the supervening illness or injury, which is the independent cause of the loss of earning capacity, has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his earnings would now be reduced or extinguished. To hold the tortfeasor, in this situation, liable to pay damages for a notional continuing loss of earnings attributable to the tortious injury is to put the plaintiff in a better position than he would be in if he had never suffered the tortious injury."