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Heil v Rankin and another

26 June 2000
The issues

What Effect Should Supervening Events Have On Compensation – What Was The Proper Approach?

The facts

The Claimant was a Police Dog Handler. In 1987 he had been involved in a serious and frightening incident. In 1993 he was involved in an incident with the First Defendant which caused him minor injury and triggered a condition of Post Traumatic Stress Disorder. The Post Traumatic Stress Disorder had initially showed itself after the 1987 incident. As a consequence, he was unable to continue in the force after 1993. The Claimants appealed against the decision of the Judge on the grounds that the Judge had made a mistake in law by taking into account the possibility that his Post Traumatic Disorder could have been triggered by some future and other tortious incident in the course of his police service.

The decision

The Judge had done no more than apply the “vicissitudes” principle. The Claimants argued following Baker v Willoughby that if an actual second tortious act could not be relied on to reduce damages in respect of the first tortious act, then it had to be the case that a hypothetical second tortious act that had not yet occurred could not be so relied upon either.

Accordingly to Otton L J that was a false argument because it was confusing two different legal functions. The danger was not under compensating the Plaintiff as in Baker, but over compensating him.

If future tortious acts had to be ignored even though they were foreseeable as likely and the Claimant was compensated on the basis of normal retirement age, then it would seem self evident that he would be compensated for sums that the tort had not caused him to lose. On the other hand, the Judge had erred in putting the percentage of future loss that he would award at 25% instead of 50%.

[I can never remember these cases so if it is of any use, here are the results of my attempts to remember the things that we were supposed to know when we were Law Students].

In Baker v Willoughby (1970) appeal cases at 467, the Claimant suffered an injury to the left leg and the damages were assessed on a full liabilty basis at £1,600.00. Before the Trial and whilst the Claimant was working at a new job he was the victim of an armed robbery. He suffered gun shot wounds to the left leg with such severity that the leg had to be amputated. The Defendant argued that his liability was limited to the loss suffered before the date of the robbery. All loss suffered thereafter was merged in and flowed from the robbery. The House of Lords held that this argument would result in an unjust award. If the robbers had been sued they would have been liable for depriving the Claimant of an already damaged leg and the Claimant would therefore have been left uncompensated in the period after the robbery for the difference between the sound leg and the damaged one.

Lord Read argued that compensation was not for the physical injury but for the loss that he suffered as a result of the injury. The loss was not having a stiff leg but was the Claimant’s inability to lead a full life and enjoy the amenities he used to enjoy and earn the money he used to earn. The second injury had not diminished any of those, so why should it be regarded as having obliterated or superseded them. In other words the Claimant’s loss after the removal of the leg was to be regarded as having two concurrent causes.

In Jobling (1982) AC 794 The House of Lords took a different view. The Defendant was liable to the Claimant for an injury to the Claimant’s back which left him with a continuing disability. Three years later and before the Trial the Claimant was diagnosed as suffering from a condition which was unrelated to the accident and which arose after the accident and which of itself made him unfit for work. The Defendants argued that the onset of the disease terminated their liabilty for the effects of the back injury. The Claimant’s relied on Baker v Willoughby. The House of Lords found for the Defendant. The disease was one of the vicissitudes of life for the chance of which the Courts regularly made discounts in the assessment of damages. It followed inevitably that it had to be taken into account when it had actually occurred before the Trial.

Attempts to reconcile the two cases have been made. The only one which approaches anywhere near success is that Baker v Willoughby is still an authority on successive tortious injuries, thus introducing a notion of “blame”. In Jobling Lord Russell was prepared to suggest that it might have been correctly decided on the basis that a subsequent tortious injury was not to be regarded as within the vicissitudes principle. Lord Keith drew the same distinction. It was this distinction that the Claimant’s Counsel was relying upon in Heil v Rankin to get home on and which failed.

Interestingly the issue cropped up again this week no more happily in another decision of the Court of Appeal Rahman v Arearose Limited and Another which is reported below.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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