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Spencer v Wincanton Holdings Ltd, Court of Appeal, 21 December 2009

12 January 2010
The issues

Intervening event – causation – remoteness – contributory negligence – whether chain of causation broken.

The facts

The Claimant was employed as a shunter-driver by the Defendant. In March 2000 the negligence of a fellow employee caused a collision with the Claimant’s stationary tractor unit. The knee struck a bolt on the steering column. The knee remained painful, keeping the Claimant off work until in June 2001 his employment was terminated. He found another job but continued to suffer pain to such an extent that he eventually decided to undergo an above knee amputation in February 2003. The Defendant accepted liability, both for negligence and the subsequent consequences of the injury. The Claimant was fitted with a prosthesis. This could not be worn in the car however until the car was adapted. He could drive it in the meanwhile because it was an automatic and required only one good leg. When driving, he used to put the prosthesis on the back seat. Since putting it on was cumbersome he used a pair of sticks outside the car as a substitute for the wheelchair which he carried in the boot for use at work and at home. In October 2003, a week before the car was due to go in for conversion, he pulled into a petrol station on his way to work. He did not sound his horn to obtain help from an attendant but got out, using neither the prosthesis nor the sticks. He went to the pump by steadying himself against his car and filled his tank. Returning to the door of his car from where he was going to summon a cashier to take his payment, he caught his foot against a raised manhole cover and fell. He ruptured his left quadriceps tendon and has been left confined to a wheelchair. The claim was issued in March 2003 and Judgment entered in June 2004, after the second accident. As a consequence, the Defendant and its insurer was now presented with a serious increase in the size of the claim, arising from what the Claimant alleged was a worsening of his injuries whilst the claim was still unresolved. The owner of the petrol station was involved in Part 20 proceedings but at Trial were exonerated. The Judge found that the injury suffered on the forecourt formed part of the damage for which the Defendant was liable. He reduced the damages by one-third to reflect the Claimant’s fault in not seeing the up stand and in not using his stick.

The Defendant Appealed.

The Claimant was refused leave to cross-Appeal.

The decision

The Defendant relied on the decision of the House of Lords in McKew v Holland & Hannen & Cubitts (Scotland) Ltd in 1969. In that case Lord Reid held that if an injured man acts unreasonably he cannot hold the Defendant liable for injury caused by his own unreasonable conduct, even if that unreasonable conduct was foreseeable.

Unreasonableness was a protean adjective, ranging in meaning from irrationality to simple lack of caution. Its purpose was to determine the point at which the law regarded a consequence as too remote. Remoteness had been described by Lord Rodger in a passage in Simmons v British Steel Plc. Lord Rodger said that the starting point was that a Defendant was not liable for a consequence of a kind which was not reasonably foreseeable (McKew). It did not however follow that a defender would be liable for all damage that was reasonably foreseeable. A defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct, even if it was reasonably foreseeable (McKew). If the Claimant’s injury was of a kind that was foreseeable, the Defendant was liable, even if the damage was greater in extent than was foreseeable or if it was caused in a way that could not have been foreseen (Hughes v Lord Advocate). The Defendant had to take his victim as he found him (Bourhill v Young). Finally, where personal injury was reasonably foreseeable, the Defendant was liable for any personal injury, whether physical or psychiatric which the Claimant suffered (Page v Smith).

The subject had also been addressed by Lord Bingham in Corr v IBC Vehicles Ltd. Lord Bingham noted that the normal approach to the extent of a Defendant’s liability involved asking two questions: firstly, whether the wrongful conduct has causally contributed to the loss and, secondly, if it had done, what was the extent of the loss for which the Defendant ought to be held liable? The second test Lord Bingham had gone on to say involved a value Judgment. It concerned the extent of the loss which the Defendant ought fairly to be held liable.

In effect, what Lord Bingham had said amounted to an acknowledgement that a succession of consequences which in fact and in logic were infinite, would be halted by the law when it became unfair to let it continue.

The Defendant argued that in this case, as in McKew, the Claimant, knowing that his leg might give way, placed himself in a position in which he was going to be further injured should that happen and that consequently he should fail on the basis of his act amounting to a novus actus interveniens. For the Claimant it was argued that the fall was a mere further consequence of the original injury. The amputation had made the Claimant prone to fall. His own misjudgement in placing himself at risk therefore, the Claimant argued, should be reflected in a diminution of his consequent damages.

The Judge found that the Claimant was carrying out an everyday task that he had done a number of times without incident. His conduct, the Judge had found, was far below what could have been described as unreasonable in terms of McKew. His conduct should sound therefore in contributory negligence. The Court of Appeal agreed with the Judge’s reasoning. The fall, like the amputation, was an unexpected but real consequence of the original accident, albeit one to which the Claimant’s own misjudgement contributed.

Appeal dismissed.


Lord Justice Sedley describes himself as “uneasy” about importing into the context of unreasonableness “concepts of recklessness or deliberate conduct from criminal law”. He quoted with approval the test in Emeh v Kensington in which Waller, LJ described the degree of unreasonable conduct as being “very high”. Lord Justice Aikens took the view that what would amount to unreasonable conduct would be so fact sensitive that it would be almost impossible to generalise, but expressed agreement with Lord Justice Sedley’s view that the passage in Clark v Linsell at 2-97, which noted “For the claimant’s subsequent conduct to be regarded as a novus actus interveniens it should be such as a can be characterised as reckless or deliberate” was unhelpful and unwarranted by case law.

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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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