Counter Schedules: Post-Accident Contributory Negligence and Its Practical Applications, Exercises of Law

Download Counter Schedules: Post-Accident Contributory Negligence and Its Practical Applications and more Exercises Law in PDF only on Docsity! 1 COUNTER SCHEDULES: THE PRACTICAL APPLICATION OF POST-ACCIDENT CONTRIBUTORY NEGLIGENCE Julian Benson, Guildhall Chambers Introduction 1. We all know that the Defendant has to take a person as they find him, thin skulls and all (Smith v Leech Brain [1962] 2 QB 405), and that a second injury is often laid at the door of the original Defendant, because it is “foreseeable that one injury may affect a person’s ability to cope with the vicissitudes of life and thereby cause another injury” (Wieland v Cyril Lord Carpets). 2. We also know that there is some conduct “so unreasonable” that it will break the chain of causation (McKew, below), which concerns conduct by the injured person. 3. There are other well known examples of difficult issues relating to the chain of causation, concerning foreseeability and remoteness: (a) Medical treatment Webb v Barlcays Bank [2001] EWCA Civ 1141 (although note apportionment 75:25!) (b) Suicide Corr v IBC Vehicles [2008] 1 AC 884 (c) Criminal conduct Meah v McCreamer [1985] 1 All ER 367 (although note ‘illegality’ not argued) (d) Alcoholism Dalling v R J Heale [2011] EWCA Civ 365 (damages reduced by 1/3 contributory negligence for consequences of second accident) 4. These notes are concerned with the more mundane – and much more frequently encountered – situation, in which the Claimant’s conduct falls short of “being so unreasonable” that it breaks the chain of causation, but may nonetheless be sufficient to justify a reduction in some or all of a claim. An old chestnut McKew v Holland [1969] 3 All ER 162 5. Mr McKew suffered a liability-admitted knee injury. 6. He knew the knee was thereafter likely to give way suddenly and without warning. 7. Nevertheless, when leaving a property he chose to use a very steep stairway, which did not have a handrail, and to walk close to his child instead of other adult family members (who might have been able to help him if his leg gave way). 8. The knee did give way, and he tried to jump to safety down the last few steps, causing further injuries. 9. The Court decided that Mr McKew’s conduct was so unreasonable that it broke the chain of causation. He failed to recover any losses arising from the fall. (Interestingly, contributory negligence was not pleaded in the alternative in McKew). 2 A new chestnut Spencer v Wincanton Holdings [2009] EWCA Civ 1404 10. Mr Spencer suffered an amputation as a result of a negligently caused injury. Consequently, he wore a prosthetic leg, and had walking sticks to help him. 11. He found it easier to drive his automatic car when his leg was not attached, and usually placed it on the rear seat behind him. 12. One day, at a petrol station, he left his car without his leg or his sticks. He filled the car, then hopped back towards the driver’s door to hoot for the attendant to come and take his payment. 13. As he returned, Mr Spencer tripped on an uneven manhole cover, fell and suffered further injuries which confined him permanently to a wheelchair. 14. The question was whether his trip was a Wieland situation (he was essentially just dealing with a daily life ‘complicated’ by his injury), or a McKew situation (“conduct so unreasonable…”) or somewhere in between (as in Dalling). 15. The trial judge decided that Mr Spencer’s actions “fell far below what could be described as McKew unreasonable. Insofar as the way he went about the task should be taken into account, that is a matter of contributory negligence.” 16. He therefore reduced the Claimant’s damages for the additional injuries (consequent upon the fall at the petrol station) by 33%. The Defendant appealed, relying on McKew. Neither party appealed the Judge’s apportionment of contributory negligence. 17. The Court of Appeal dismissed the appeal, and discussed the boundaries between McKew conduct and lesser instances of ‘fault’ (paragraph 44: Aitkens LJ – who also quoted the Judge’s findings (above) with approval). Remind me, what is contributory negligence in this context? 18. “Where any person suffers damage as the result partly of his own fault…..the damages in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the Claimant’s share in the responsibility for the damage.” Section 1(1) Law Reform (Contributory Negligence) Act 1945 ‘Spencer’ considerations 19. Keep a watchful eye on the Claimant’s behaviour after the accident. 20. Do not pounce on every error or poor decision! 21. What you are looking for, in relation to something the Claimant has done or not done, is something patently unreasonable or ill-advised but falling short of ‘McKew’. 22. As regards a worsening medical picture, you are looking for an obvious failing, with predictably significant consequences, which the Claimant could have avoided with relative ease by following unanimous (or near-unanimous) treating and medico-legal opinion. ‘Spencer in action’ 23. The following is a truncated/anonymised extract of a ‘Part 36’ letter. Much of it could be adapted into the Counter-Schedule: