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Dalling v R J Heale Co Ltd, Court of Appeal, 5 April 2011

15 April 2011
The issues

Corr v IBC Vehicles Ltd – causation – Kuwait Airways Corporation v Iraqi Airways Company

The facts

On the 4th March 2005 the Claimant, who was a ceiling fixer, fell about 15 feet suffering a severe head injury and a back injury. The Claimant made a good but incomplete physical recovery. The head injury left him with some hearing loss and the loss of some sense of smell. He was also left with executive dysfunction – poor concentration, impaired memory, some loss of emotional control, mood variation, fatigue, an impaired ability to plan ahead and a reduced ability to initiate activities or motivate himself. He was unlikely to ever work again other than in a therapeutic setting.

Before the 2005 accident he rarely drank to excess. Although he had been drunk on occasion, he had never been so drunk as to fall over. After the first accident his drinking habits changed. He began to drink to excess. The expert evidence accepted by the Judge was that the head injury had reduced the Claimant’s ability to control his drinking. It had also had the effect of making him become more drunk on a modest amount of alcohol than he would have been but for the head injury. On the 25th October 2008 the Claimant was in a pub where he had spent the evening. A CCTV camera recorded him falling over backwards and striking his head on the floor. He had had far too much to drink. He suffered another head injury, this time less severe than the 2005 injury.

The Defendant argued that there was a break in the chain of causation between the first accident for which it was liable and the second accident for which it should not be held liable.

The Judge, following the decision in Kuwait Airways put himself to a two-stage enquiry; firstly, whether the wrongful conduct causally contributed to the loss and if it did, then what was the extent of the loss for which the Defendant ought to be held liable? The first test being a factual test, the second involving a value judgement. The Judge concluded that the executive impairment as a result of the first accident played a causative part in the drinking to great excess on the 25th October 2008, the second accident. As to the second test, the Judge considered it fair to hold the Defendant responsible for the continuing effect of the original injury. He considered however that whilst the causative degree of lack of self-control and enhanced susceptibility to the potency of alcohol were a product of the first accident, the Claimant should also bear less responsibility to the effect of one-third for the second accident.

The Defendant Appealed.

The decision

The Defendant accepted that the Judge had been entitled to hold that the second injury was causally related to the first. As to the second consideration, i.e. whether it was unfair or unjust to hold the Defendant liable, both Lord Nicholls in Kuwait and Lord Bingham in Corr had said that one of the relevant considerations was whether the Claimant himself was substantially responsible for the injury. It would be possible therefore for a Judge to hold that although there was a causal link, that the Claimant should not recover anything because the injury was substantially his own fault. Here it was clear from the Judge’s findings as to contributory negligence that both the Claimant and the Defendant bore significant responsibility and that the consequences of the first accident had not been to completely destroy the Claimant’s ability to control his drinking but to impair it so that his actions on the night of October 2008 were not acts of free volition. They were acts for which he was partly responsible and the Defendant partly responsible. There was nothing wrong with the Judge’s apportionment.

Appeal dismissed.

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