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216 NEGLIGENCŁ CAUSATION AND CONTRIBUTORY NEGUGENCE

damaged one. The defendant's argument was said to contain a faliacy j_n its assertion that the injury to the leg was obliterated by the subsequent amputation because, as Lord Reid put it,⁴² a person:

"is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of the injury. His loss is not i_n having a stiff leg: it is his inability to lead a fuli life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to eam or could have earned if there had been no accident. In this case the second injury did not diminish any of these. So why should it be regarded as having obliterated or superseded them?"

In other words, the claimant's loss after the removal of the leg was regarded as having two concurrent causes, though it is elear that if the robbers had shot him dead the defendant's liability would not have extended beyond that point.⁴⁴

The decision in Baker v. Willoughby received a hard knock in Jobling v. Associated Dairies Ud,⁴⁴ The defendants' breach of duty caused the claim-ant to suffer injury to his back and this left him with a continuing disability. Three years la ter, and before trial, the claimant was diagnosed as suffering from a condition (myelopathy), unrelated to the accident and arising after the accident,⁴⁵ which of itself rendered him totally unfit for work. The defendants naturally contended that the onset of the myelopathy terminated the period in respect of which they were liable for the effects of the back injury; in reply, the claimant argued that the case should be governed by Baker v. Willoughbi/. A unanimous House of Lords found for the defendants. The myelopathy was one of the "vicissitudes of life" for the chance of which the courts regularly madę discounts in the assessment of damages for futurę loss of eamings⁴'’ and it followed inevitably that it must be taken into account in fuli when it had actually occurred before the trial.

"When the supervening illness or injury which is the independent cause of the loss of eaming capacity has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his eamings would now be reduced or extinguished. To hołd the tortfeasor, in this situation, liable to pay damages for a notional continuing loss of eamings attributable to the

*- [19701 A.C. .It 492.

The robbers would (in theory) have been liable to his dependants under the Fatal Accidents Act. but the damages would take account ot any a*duction in eaming capacity attributable to the accident. If the claimant had died of natural causes before the trial the liability of neither the defendant nor the robbei> would have e\tended bevond that point.

⁴⁴ (19821 A.C. 794.

*^s It had been conceded that if the myelopathy had been e\isting but dormant at the time of the accident it would have to be taken into account in assessing damages ** See Chap. 22. below.

tortious injury, is to put the plaintiff in a better position than he would be in if he had never suffered the tortious injury."''⁷

This approach is totally inconsistent with the theory of the concurrent effect of consecutive causes advanced in Baker v. Willougltlnand that case can no longer be regarded as a generał authority on causa tion.⁴“ How far it is an authority on successive tortious injuries is less elear. Lord Russell was prepared to suggest that it might have been correctly decided on the basis that a subsequent tortious injury was not to be regarded as within the "vicissitudes" principle, and hence should not be regarded as removing the effects of the first injury,⁵⁰ and Lord Keith, though not for the same reasons, drew a distinction between tortious and non-tortious injuries.⁵¹ However, Lord Bridge, while recognising the force of the argument that the claimant should not be under-compensated by reason of the chance that he is the victim of two torts rather than one, pointed out that the distinction between tortious and non-tortious causes was implicitly rejected in Baker.⁵² It would be a fiction to say that a second tortious injury was necessarily morę unlikely than an illness: in the case of a police officer, for example, it might be a good deal morę likely.⁵³ The Court of Appeal has sińce held in Heil v. Raukin that there is no generał principle that the prospect of a subsequent tort is to be ignored in determining what loss is attributable to the defendant's tort.⁵⁴ Hence the claimant's damages against the defendant were reduced to take account of the fact that some other incident might have occurred which would have triggered an aggravation of the claimant's Iow grade PTSD condition⁵⁵ and rendered him incapable of continuing in the police service. Baker v. Willoughln/ was explained as a case where it was necessary to ignore the occurretice of the second tort to prevent the claimant being caught between the two propo-sitions that (a) the first tortfeasor could argue that the damage inflicted by him was now to be attributed to another cause and (b) the second tortfeasor could argue that he took the devalued claimant as he found him. That was necessary to avoid under-compensation, whereas in Heil to ignore the risk of futurę disabling tortious conduct would lead to over-compensation. These matters are clearly to be decided on the basis of pragmatism rather than logie but from an intuitive point of view it looks

*⁷ [1982J A.C. at 820, per Lord Bridge.

** Is it also inconsistent with the proposition that simultaneous suffirient causes may have concurrent effect? But there is no sign in Jobliitg that anyone intended anything so revolutionary.

** (19821 A.C. at 802,809,815,821. However. in Rahman v. ArcaroseLtd [2001 ] Q.B. 351 at 367 Laws L.J. saw

"no inconsistency whatever between the two cases", though the matter was not pursued.

⁵⁰ ibid., at 810. See also Power v. Mitchell [19781 4 W.W.R. 328.

'•[1982] A.C. at 815.

⁵⁵ ibid., at 819. Lord Edmund Davies would seem to have agreed with Lord Bridge, for he said that he could "formulate no convincing juristic or logical principles supportive of the decision" in Baker.

^M [20011 P.I.Q.R. Q16 (this case should not be confused with the case of the same name [2001 ] Q.B. 272

kon damages for non-pecuniary loss, para 22.22, below).

' That had been produced by an earlier criminal assault. though that was not the subject of civil proceedings. So in Heil three torts were in issuc: the criminal assault, the road incident which was the subject of the action and the hypothetical tort which might have occurred anyway.