The claimants suffered vibration white finger working for the defendants with percussive tools over many years to 1987, but then continued in other employments which also involved vibrating tools and which caused further damage. The claimants made claims in negligence against the defendants, in which the judge found that, in the light of their knowledge in 1973, the defendants should have carried out surveys to ascertain the incidence of vibratory white finger and should have warned the claimants of the risk. She also held that by 1976 the defendants should have found alternative less damaging work for the first claimant, or should have reduced the time he spent exposed to vibration. She assessed the appropriate compensation for the whole of the first claimant’s injury at andpound;11,000 but awarded him only andpound;4,000, deducting from the total andpound;1,500 for the period before 1976, andpound;1,500 for the period after 1987, and andpound;4,000, that is half the remaining andpound;8,000, for the period from 1976 to 1987 to take account of the damage already suffered and the fact that, on the evidence, if the defendants had complied with their duty, the claimant’s exposure could have been reduced by half. The first claimant accepted the deductions for damage suffered before 1973 and after 1987, but disputed the further deduction of andpound;4,000.
Held: It was contended for the first claimant that, once it had been shown that the defendants’ negligence made a material contribution to the injury suffered by the claimant, the defendants were liable for the whole of the claimant’s injury except in so far as it was shown or accepted that this had been aggravated by non-negligent exposure before 1973 or after 1987 by the first claimant’s new employers. The defendants argued that an employer was only liable for that part of the harm suffered by the employee which was attributable to the employer’s negligence. Schiemann LJ concluded: ‘In our judgment the case law as it now stands establishes five propositions of which the first is concerned with liability and the others with quantifying damages. (i) The employee will establish liability if he can prove that the employer’s tortious conduct made a material contribution to the employee’s disability. (ii) There can be cases where the state of the evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the claimant complains; for instance where a passenger is killed as the result of a head-on collision between two cars each of which was negligently driven and in one of which he was sitting. (iii) However in principle the amount of the employer’s liability will be limited to the extent of the contribution which his tortious conduct made to the employee’s disability. (iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct. (v) The amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury.
The application of those propositions should lead to a just and principled result. We mention by way of coda that this approach seems to accord with the view of the authors of the American Law Institute Restatement of the Law, Torts, 2d (1965), section 433A(e): ‘Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct.”
Citations:
[2001] EWCA Civ 242, 2001] ICR 942, [2001] PIQR Q10
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Environment Agency v Ellis CA 17-Oct-2008
The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Damages
Updated: 31 May 2022; Ref: scu.147447
