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Rahman v Arearose Ltd and another

26 June 2000
The issues

Causation

The facts

The Claimant was a Manager of the Kings Cross branch of Burger King. The franchisees were the First Defendants. They employed the Claimant. In March 1995 two youths came onto the premises and caused trouble. The Claimant ordered them off but they assaulted him viciously, punching, kicking and striking him with a fire bar taken from a boiling hot fryer, splashing boiling oil over the tops of his legs etc. He was kicked, punched and stamped on the face. He was cared for overnight in hospital.

His right eye was seriously injured and operated upon. As a consequence of an allegedly negligent operation, his vision in the right eye was permanently lost. The Claimant suffered psychiatric and physical injuries. The Appeal was concerned with the psychiatric injuries. The doctors agreed that he was suffering from four separate psychiatric disorders: –

1. PTSD due to the assault but with some symptoms relating to the operation.
2. Severe depressive disorder of psychotic intensity – thought to be largely psychological reaction to the loss of the eye.
3. Specific phobia of black people with paranoid elaboration – though to be due to the assault
4. Enduring personality change – thought to be due to the effect of the depression and the PTSD.

They were also asked to address the issues specifically of what would have happened if the eye injury had not occurred and they decided that he would still have developed PTSD and that the symptoms would have persisted for at least one year and gone on for up to another two years with a gradual decrease in severity. Without the eye injury there would not have been the enduring personality change.

The case came before Rougier J.

He regarded the Defendant’s as “separate tort feasers and not joint tort feasers but assessed the value of the Claimant’s case in the round, then indicating that he would “take somewhat a global view of the extent to which the negligence of each defendant has contributed to the total of the Claimant’s loss.” He assessed general damages at £7,500.00 as against the First Defendants and £55,000.00 as against the Second Defendants. The future loss claim totalled £441,000.00. He apportioned these damages; two thirds to the Second Defendant and one third to the First Defendant.

The decision

On appeal the Court of Appeal was asked to decide whether the First Defendant should be liable for any loss or damage beyond that which the Claimant would have suffered if the eye injury caused by the Second Defendant’s negligence had not occurred. After a discussion (somewhat brief) the authorities Lord Justice of Laws decided that there was no rule of law that later negligence always extinguished the “causative potency” of an earlier tort. It was not possible to be theoretical. The common law approach had been heavily pragmatic. Jobling and Baker were not inconsistent “once it is recognised that the first principles that every tort feaser should compensate the injured Claimant in respect of that loss of damage for which he should justly be held responsible”. (Is this effectively accepting that Baker survives only in respect of tort feasers. The Lord Justice Lord appears to be saying that these are broad arguments to which the Judges will give broad and sometimes informed answers. To assist them in reconciling the irreconcilable they will make use of inter alia concepts of blame where you are dealing with two tort feasers. Neither the supervening cause argument nor the eggshell skull argument will bind the Court’s decision if it would be unjust to do so. “Blame may be material to the application or dis-application in any particular case of our ideas of novas actus and eggshell skulls”.

Comments

If it is right that Baker can be reconciled with Jobling on the basis of blame, as is supported by Law LJ’s argument in Rahman then the decision of Otton L J looks distinctly dodgy because it is dependant on an apportionment of blame in a situation where no such apportionment can be made because there is no one else to blame; only a hypothetical future tort feaser?

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