The measure of injury

The issue of assessment of damages arose in Gray v (1) Thames Trains Ltd (2) Network Rail Infrastructure Ltd (Formerly Railtrack Plc) [2008] EWCA Civ 713, [2008] All ER (D) 326 (Jun). Gray, who had been involved in the Ladbroke Grove rail crash, appealed against a decision that he was not entitled to damages for loss of earnings due to the principle of ex turpi causa. Gray had suffered severe post traumatic stress disorder as a result of the crash and which had subsequently caused him to undergo a severe personality change. He later stabbed a stranger to death and was detained in a hospital under s 37 of the Mental Health Act 1983, after pleading guilty to manslaughter.

Gray claimed damages on the basis that he was not able to earn as much as he would have done but for the accident. While the defendant admitted liability for loss of earnings up to the date of manslaughter, liability for losses incurred thereafter was denied on the basis of ex turpi causa. The trial judge rejected the loss of earnings claim after the date of the manslaughter as Gray’s claim was closely connected with or inextricably bound up with his own criminal conduct.

Gray’s appeal was upheld. In a case where the cause of action itself did not arise out of an illegal act, the question was whether or not the relevant loss was inextricably linked with Gray’s illegal act. It was found that his loss of earnings claim was not inextricably bound up with or linked with his criminal conduct such that it would be defeated by public policy and there was therefore nothing inconsistent in allowing his claim. But for the tort, Gray would have earned money both before and after the date of the manslaughter, therefore entitling him to recover the whole of his loss of earnings claim from the defendant. The evidential burden of showing that the crime and Gray’s subsequent incarceration amounted to a break in the chain of causation was on the defendant and where the manslaughter either did not break the chain of causation or where any contributory fault on the part of the claimant was less than 100%, the claim would not be so inextricably bound up with the criminal conduct so as to be prohibited by public policy.

Physical injury
Apportionment in the context of physical injury proved troublesome in the case of Environment Agency v Ellis [2008] EWCA Civ 1117, [2008] All ER (D) 163 (Oct). Ellis, who worked as a plant machinery driver, fell from a height at work and injured his back and for which his employer accepted liability. A year later, he sustained a second accident for which his employer was not liable. Subsequently, Ellis’s back gave way causing an enduring right knee injury.

It was accepted that Ellis had a degree of spinal degeneration that had been asymptomatic prior to the accident at work. Ellis claimed that the accident had accelerated the symptoms by some 10 years. The trial judge held that the fall at home would not have taken place but for the accident at work such that causation between the two events had been satisfactorily established. However, the judge took a different approach to apportionment based on various factors which included the medical evidence and that the second accident further contributed to lumbar deterioration. On this basis, the judge discounted damages by 10%.

Each party appealed in this case. Ellis appealed on the grounds that it had been shown that the accident at work had been a sufficient material cause of the fall at home which would justify the full award of damages. His employer argued that there should have been an apportionment of damages between the three causes of injury: namely the accident at work, the pre-existing degeneration and the second accident. Unfortunately for the employer, the orthopaedic evidence had been provided by a jointly instructed expert, who had concluded that the fall at home and especially the knee injury would not have occurred had the accident at work not occurred. Applying the standard “but for” causation test, Ellis should have received 100% per cent of his damages because the second accident was not a fully blown intervening event as if it had been, the causative potency of the accident at work would have ceased to have effect and Ellis could not have claimed damages after that point. Ellis’s damages were already being reduced to reflect the fact that his back would have deteriorated in any event and there was therefore no injustice to his employer if the court chose not to depart from the standard “but for” rule. Ellis was therefore awarded 100% of his damages.

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