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Cite as: [2010] PIQR P8, [2009] EWCA Civ 1404

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Neutral Citation Number: [2009] EWCA Civ 1404
Case No: B3/2009/0882

HHJ Bullimore

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and -



Mr Dominic Nolan QC (instructed by Dla Piper UK Ltd) for the Appellant
Mr John Mcneil and Mr Andrew Bridgeman (instructed by Keeble Hawson) for the Respondent
Hearing date: Thursday 26 November 2009



Crown Copyright ©

    Lord Justice Sedley :

  1. If an unwise or risky act on the part of the claimant in an ongoing personal injuries action results in an aggravation of the injuries for which the defendant is liable, by what test does the court decide whether the damages are to include the aggravated element of the injury in full, in part or at all? It has been common ground before us that liability ceases at the point where the chain of causation is interrupted; the dispute is as to what kind of act on the claimant's part constitutes such an interruption.
  2. Mr Spencer, a former RAF serviceman, was employed as a shunter-driver by the defendant enterprise. In March 2000 a collision with his stationary tractor unit caused by the momentary negligence of a fellow employee caused his right knee to strike a bolt on the steering column. The defendant's vicarious liability for the compensable consequences of this initially minor accident has never been in dispute.
  3. From the accident, however, flowed an increasingly disastrous succession of disabilities. The knee remained unremittingly painful, keeping Mr Spencer off work until finally in June 2001 his employment had to be terminated. Nothing daunted, he found himself another job which would accommodate his handicap and which he still does. But the degree of pain was such that he eventually made an informed decision to undergo an above-knee amputation in February 2003. Liability for this, as a further consequence of the original injury, is also accepted.
  4. Mr Spencer made a good recovery. He was fitted with a prosthesis, but this could not be worn in the car he bought with the help of an interim payment until the car was adapted. Meanwhile, however, he was able to drive it because it had an automatic transmission requiring only one good leg. Because he could not wear the prosthesis while driving, he would place it on the back seat; and since putting it on was cumbersome and involved loosening his trousers, he instead 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.
  5. On 14 October 2003, a week or so before the car was due to go in for conversion, Mr Spencer pulled into a Sainsbury's petrol station on his way to work. Rather than sound his horn to obtain help from an attendant he got out, using neither the prosthesis nor the sticks, got to the pump by steadying himself against his car and filled his tank. Returning to the driver's door, from where he was going to summon a cashier to take his payment, he caught his foot against a raised manhole cover and fell. The fall (he was a heavy man) ruptured his left quadriceps tendon and did lasting damage which has confined him to a wheelchair for good.
  6. Liability not being in issue, the claim had proceeded to this point by negotiation. The defendants' insurers had taken the sensible view that, with a stoical claimant who was evidently determined to rehabilitate himself as far as he could, their best course lay in assisting him to do so and in not settling too soon. The claimant's advisers had correspondingly held off issuing a writ until 12 March 2003, only a few days short of the limitation period. Judgment was entered for damages to be assessed on 24 June 2004. Had the claim settled before the accident on the forecourt, it would have had to make some notional allowance for the possibility of further injury resulting from the instability caused by the amputation; but that would have been all. What the defendants now resist is a serious increase in the size of the claim arising from the eventuation of that possibility while the claim was still unresolved.
  7. Their first step was to blame Sainsburys in Part 20 proceedings for the one-inch upstand in the forecourt surface and its role in Mr Spencer's further injury. Mr Spencer had initially done the same but had withdrawn the claim. At trial in the Sheffield County Court Judge Bullimore exonerated Sainsburys. They no longer feature – except indirectly - in the case. He went on to hold that the injury suffered by Mr Spencer on the forecourt formed part of the damage for which Wincanton were liable. But he reduced the consequent damages by one third to reflect Mr Spencer's fault in not seeing the upstand and in not using his sticks.
  8. The judge gave Wincanton permission to appeal his decision on the extent of their liability to Mr Spencer. An application on the latter's behalf to cross-appeal the finding of contributory fault was refused on sight of the papers by Smith LJ and has not been renewed. It follows that, if the appeal succeeds, Mr Spencer will recover no damages attributable to the fall on the forecourt; if it fails, as much of the damages as are attributable to the fall on the forecourt will be reduced by one third.
  9. Both here and below the foundation of the appellants' case, which has been cogently presented by Dominic Nolan QC, has been the decision of the House of Lords in McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621. As a result of an actionable injury at work the pursuer had developed an intermittent weakness of the left leg, which would give way without warning. While his claim was pending he went with his wife, his brother-in-law and his child to a Glasgow tenement flat approached by a steep stair with no handrail. On leaving, he went down the stairs with the child ahead of his wife and brother-in-law, and his leg gave way. With no handrail and no adult support, he found himself falling and so jumped, fracturing his right ankle badly as he landed.
  10. For all material purposes the single reasoned speech is that of Lord Reid. (Lord Guest, in the only other full speech, considered the split-second decision to jump not to have been "reasonable human conduct".) The key passage (at 1623 E-I) is this:
  11. "In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other nouvs actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the nouvs actus. It only leads to trouble that if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does he cannot hold the defender liable for the consequences.
    So in my view the question here is whether the second accident was caused by the appellant doing something unreasonable."
  12. The difficulty with which this formulation presents trial courts is that "unreasonable" is a protean adjective. Its nuances run from irrationality to simple incaution or unwisdom. It is helpful to locate its correct position on the scale of meanings by recalling that its purpose in this context is to determine the point at which the law regards a consequence as too remote.
  13. The account of remoteness on which Mr Nolan founds is that described by Lord Rodger in Simmons v British Steel plc [2004] UKHL 20:
  14. "These authorities suggest that, once liability is established, any question of remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid; Bourhill v Young [1943] AC 92, 101, per Lord Russell of Killowen; Allan v Barclay (1864) 2 M 873, 874, per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid: Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546. (3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent that was foreseeable, or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837, 847, per Lord Reid. (4) The defender must take his victim as he finds him: Bourhill v Young [1943] AC 92, 109-110, per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 SLT 41, 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] AC 155, 197F-H per Lord Lloyd of Berwick. "
  15. It seems to me problematical, with respect, to try to explain remoteness in terms of foreseeability. If anything, it is foreseeability which has to be explained in terms of remoteness. There is an illuminating account of the meaning of legal foreseeability in the judgment of Eveleigh J (as he then was) in Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006, 1009-1111, which, without reproducing it here, seems to me a practical account entirely consonant with Lord Rodger's summary.
  16. As Lord Bingham, having cited Lord Rodger's summary, went on to explain in his speech in Corr v IBC Vehicles Ltd [2008] UKHL 13, "the rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness" (§15). This reflects the exegesis of the philosophical and legal literature on the topic given by Lord Nicholls in Kuwait Airways Corporation v Iraqi Airways Co (#4 and 5) [2002] UKHL 19:
  17. "69. How, then does one identify a plaintiff's "true loss" in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant's liability for the plaintiff's loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple "but for" test, is predominately a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment.
    70. The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment ("ought to be held liable"). Written large the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are unchangeable). To adapt the language of Jane Stapleton in her article "Unpacking 'Causation'" in Relating to Responsibility, ed Cane and Gardner (2001), p 168, the inquiry is whether the plaintiff's harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause or because the loss was the product of an intervening cause. The defendants' responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this."
  18. Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.
  19. The present case illustrates these propositions. Nobody could have predicted that a minor collision in the warehouse would lead to the loss of Mr Spencer's right leg. But there has rightly been no dispute that the eventual amputation lay within the range of foreseeability described in Lord Rodger's propositions in Simmons, so that damages for its consequences are recoverable in full. Similarly in Corr there was no dispute that the profound depression which unaccountably followed the physical injury sounded in damages. The question was whether the suicide to which the depression led was also part of the damage; as it was held to be. So here, in Judge Bullimore's view, the fall on the petrol station forecourt was a further consequence of the original injury: the amputation had made the claimant prone to fall. His own misjudgement in placing himself at risk was to be reflected in a diminution of the consequent damages.
  20. Mr Nolan contests this reasoning. He submits that this case is like that of McKew. There the pursuer, knowing that his leg might give way, needlessly placed himself in a position in which he was going to be further injured should that happen. Here the claimant did exactly the same.
  21. Judge Bullimore considered this argument with care. He also took into account a passage from Clerk and Lindsell on Torts (19th ed, 2006), §2-96:
  22. "The courts will not be eager to find a claimant's response to injury, or her subsequent conduct unreasonable. If a claimant weakened by an initial injury, and exercising ordinary prudence in everyday life suffers subsequent injury the defendant will normally be liable for that injury."

    To this Mr McNeil for the claimant adds a passage at §2-97:

    "It is submitted that for the claimant's subsequent conduct to be regarded as a novus actus interveniens it should be such as can be characterised as reckless or deliberate. Unreasonable conduct can be dealt with by a finding of contributory negligence."
  23. The authorities cited in Clerk and Lindsell do not appear to advance Mr McNeil's case. Moreover, one is uneasy about the importation of a formula ("recklessly or deliberately") from the field of criminal law, where recklessness is commonly equated with intent. Intent has no obvious bearing on contributory fault: an intentional act may be anything from a fault-free act to a novus actus interveniens, and between those poles anything from an act of gross recklessness to one of forgivable inadvertence.
  24. Perhaps of more relevance is what Waller LJ said about the McKew test in Emeh v Kensington etc AHA [1984] 3 All ER 1044, 1049:
  25. "… the degree of unreasonable conduct which is required is, on Lord Reid's view, very high."
  26. Judge Bullimore, having taken note of all the authorities cited to him, came to this conclusion:
  27. "91. The Claimant was carrying out an everyday task that he had done a number of times before without incident. He was seeking to act without reliance on others; in general terms his determination to live his life as normally as possible is to be commended. His conduct fell far below what could be described as McKew unreasonable. Insofar as the way he went about the task should be taken into account, that is a matter of contributory negligence.
    92. It is accepted that the fact that the Claimant only had one leg was a factor in the accident. Because of that the Claimant was more vulnerable to a trip or slip with his good leg, than a two legged man, who would be better able to recover his footing if he tripped or stumbled. Mr Nolan submits that it was unforeseeable to the Defendants or their driver that the Claimant would fall while hopping round his car, just as it was unforeseeable he would lose his leg, and if it was unforeseeable that is an end of the case. That in my view places too much emphasis on what exactly is to be foreseen. The direct result of the first accident was the loss of the leg. A one-legged man is less stable: it is foreseeable that in going about his daily business a one legged man is more vulnerable to trips and slips than a two legged man. It is quite unnecessary to ask if the Defendant, who would be bound to acknowledge that, could or should have also foreseen the trip occurred when the Claimant was filling his car with fuel.
    93. I have no difficulty in concluding the Defendant ought to be liable for the effects of the second accident. It was responsible for the wrongdoing of the other driver, which led to unexpected but directly caused injury to the Claimant, as a result of which he lost his leg. That factor was a primary cause in the events surrounding the second accident. It is fair and just in my view to hold the Defendants responsible for that."
  28. The judge's finding that the measure of blame resting on Mr Spencer for not seeing the raised cover and for not using his walking sticks should be reflected in a finding of one third contributory fault has been neither appealed nor cross-appealed. Even so, Mr Nolan has argued that the finding of contributory negligence in the non-use of his walking sticks is in substance a finding of recklessness and should be so regarded by this court, taking the case into the McKew bracket or at least requiring an uplift in the proportion of contributory fault. (It is a curious fact, to which Longmore LJ drew attention in the course of argument, that contributory negligence does not appear to have been pleaded in McKew – see [1968] SLT 12 – so that it was an all-or-nothing case.)
  29. For my part I see no good reason to go behind or beyond the judge's own measured evaluation of this element of the case. If the judge had found Mr Spencer principally to blame, the case might have been closer to McKew. As it is, the apportionment of blame speaks clearly against a finding either that Mr Spencer acted recklessly or that it was unfair to treat the chain of causation as surviving his fall. Like the amputation, the fall was, on the judge's findings, an unexpected but real consequence of the original accident, albeit one to which Mr Spencer's own misjudgement contributed.
  30. In my view Judge Bullimore made no error of law in holding the appellants principally liable in damages for the consequences of the respondent's fall on the petrol station forecourt. I would dismiss this appeal.
  31. Lord Justice Longmore:

  32. I agree.
  33. Lord Justice Aikens:

  34. I have read the judgment of Sedley LJ. I agree that this appeal must be dismissed.
  35. The facts have been set out by Sedley LJ. The only issue in the appeal is whether or not the appellants ("Wincanton") must compensate the respondent ("Mr Spencer") in damages, general and special, for the consequences that arise from his accident in the forecourt of a Sainsbury's garage on 14 October 2003 ("the second accident"). This is an issue of causation. Or, to put the matter in question form: were the consequences and the damages arising from the second accident caused by the negligence of Wincanton's employee (for which Wincanton accepts it is liable) which resulted in the accident in March 2000 ("the first accident").
  36. It is now accepted on behalf of Mr Spencer that he cannot disturb the judge's finding that he was contributorily negligent in relation to the second accident. The judge found Mr Spencer was contributorily negligent to the extent of one – third.
  37. Lord Hoffmann has said, extra-judicially, (reflecting the work of Professors Hart and Honoré in Causation in the Law, 2nd Ed 1994), that English law uses the concept of causation to attribute responsibility for things that happen. .(See: "Causation" in (2005) 121 LQR 592). In this context the English law of tort has developed what might be called "exclusionary rules". These are intended to assist judges in deciding the circumstances in which a defendant, whose liability to a claimant for a particular occurrence has been established, will not be responsible for certain consequences of an act of negligence and the damages that are claimed to flow from those consequences. Such consequences and the damages resulting are said to be "too remote" in law to be recoverable. These " exclusionary rules", which apply both to English and Scottish law, were summarised by Lord Rodger of Earlsferry in Simmons v British Steel plc [2004] ICR 585 at paragraph 67, and were reproduced and adopted by Lord Bingham in the English case of Corr v IBC Vehicles Ltd [2008] 1 AC 884 at paragraph 8. Sedley LJ has quoted them above at [12], so I need not repeat them.
  38. Mr Nolan's first argument before us was that Wincanton could not be liable for damages arising out of the consequences of the second accident because that accident and its consequences were "of a kind which is not reasonably foreseeable" by Wincanton. Thus the claim in respect of damages consequent upon the second accident fell foul of Lord Rodger's first qualification.
  39. Mr Nolan accepted two points, in conformity with Lord Bingham's statements in Corr's case at paragraph 11. First, the question of whether a consequence was of a kind that was reasonably foreseeable has to be judged at the time of the breach of duty which gave rise to the defendant's liability in the first place. In this case, that means at the time of the first accident in 2000. Secondly, that the question of foreseeability had to be judged by the standards of the reasonable employer at that time and by reference to a hypothetical employee, rather than the actual victim.
  40. Mr Nolan submitted that it was not reasonably foreseeable for Wincanton, by the standards of a reasonable employer, to foresee that, as a result of its breach of duty in 2000, a hypothetical employee in the position of Mr Spencer would suffer a consequence of the kind that he had: viz. a fall in a garage forecourt in 2003 whilst refilling his car with petrol, following the amputation of his injured leg nearly three years after the first accident. Mr Nolan emphasised the judge's finding, in paragraph 83 of his judgment, that "no one could have imagined that [Mr Spencer] might lose his leg" as a consequence of the first accident.
  41. I cannot accept this argument. The different "kinds of consequence" are not to be so narrowly defined as Mr Nolan would suggest. The "kind of consequence" in question here is: personal injury and damages that results from it. Mr Nolan had to accept that amputation of Mr Spencer's right leg above the knee was a kind of consequence that was reasonably foreseeable to a reasonable employer at the time of the original breach of duty in 2000. Mr Nolan also accepted that, after the amputation, it was foreseeable, even perhaps likely, that Mr Spencer might fall. Therefore, if personal injury and its consequences, ie. amputation, were a kind of consequence that was foreseeable by the reasonable employer at the time of the first accident, it must follow that personal injury following on from that amputation, which injury was caused by the amputation (in the sense that "but for" that amputation, it would not have occurred), must also be a kind of consequence that was reasonably foreseeable at the time of the first accident.
  42. Mr Nolan's second argument was that Wincanton was not liable for damages resulting from the second accident because those damages were the result of "unreasonable conduct" on the part of Mr Spencer. Therefore, they fell foul of Lord Rodger's second qualification.
  43. Lord Rodger states in that qualification that, "depending on the circumstances, the defender will not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable". As Sedley LJ has already pointed out, in Corr's case, Lord Bingham said, at [15], that the rationale of the principle that a novus actus interveniens breaks "the chain of causation" is "fairness".
  44. It appears that in this paragraph Lord Bingham was including within the ambit of novus actus interveniens both the intervening conduct of a third party and also the conduct of the claimant himself. Lord Bingham added:
  45. "It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor's breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible".
  46. It might be argued, with great respect to Lord Bingham, that this statement leaves open the question of precisely when a particular cause is so independent and supervening that the tortfeasor is not responsible for it, so that the tortfeasor is not liable for damage caused by it. However, Lord Wright's famous description of what constitutes a novus actus interveniens, which he propounded in the case of Lord v Pacific Steam Navigation Co Ltd, The "Oropesa" [1943] P 32 at 39 and which is so well known that I need not quote it, is no less broad and unspecific.
  47. This unwillingness to be prescriptive must be deliberate. I agree with Sedley LJ that, as Lord Nicholls recognised frankly in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 at [70], the courts have to make a value judgment when dealing with the issue of "remoteness of damage". "Causation" and "remoteness" are two epithets which describe the same process of legal decision making: how to apply responsibility for things that happen. The question is always: having established the facts, what is the extent of the loss for which a defendant ought fairly, or reasonably, or justly to be held liable?
  48. In this case, the suggested novus actus interveniens that "breaks the chain of causation" so that Wincanton is not liable for the consequences of the second accident is the unreasonable conduct of the claimant, Mr Spencer. In the Scottish case of McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC (HL) 20, [1969] 3 All ER 1621, Lord Reid stated (at pages 25 and 1623 respectively) that "if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens".
  49. When Lord Reid considered the facts of that case he held that the chain of causation from the original tortious act of the defender was broken by a combination of two things. First, the pursuer's knowledge that his leg was likely to give way suddenly and without warning; and secondly, the pursuer's decision to start the descent of very steep stairs without a handrail, ahead of his adult family, with only his child to help him and not taking greater care in doing so. But Lord Reid also said that the pursuer's decision to try and jump when he realised he had lost his balance was no more than an error of judgment. That act was not, in itself, unreasonable conduct.
  50. Lord Rodgers cites the McKew case in support of his second qualification in Simmons. As I have already noted, Lord Bingham quoted the whole summary of the Lord Rodgers' five points, including the citations, in Corr.
  51. Lord Reid did not expand on what he meant by "unreasonable conduct". In the English case of Emeh v Kensington and Chelsea and Westminster Area Health Authority [1984] 3 All ER 1044 at 1049e, Waller LJ referred to Lord Reid's speech in McKew. Waller LJ quoted the passage where Lord Reid dealt with the argument about the effect of the pursuer's decision to jump when he started to lose his balance, which Lord Reid held was not unreasonable conduct. Waller LJ continued: "So the degree of unreasonable conduct which is required is, on Lord Reid's view, very high".
  52. In the current and previous edition of Clerk & Lindsell on Torts (para 2-97 of the current edition), it is submitted that "for the claimant's subsequent conduct to be regarded as a novus actus interveniens it should be such as can be characterised as reckless or deliberate". Speaking for myself, I regard that as an unhelpful suggestion which is not warranted by any decision cited to us. Nor is it supported by the passage in the decision of Evans-Lombe J in Barings plc (in liquidation) v Coopers & Lybrand (a firm) [2003] EWHC 1319 (Ch), which is cited in the footnote at the end of the sentence in Clerk & Lindsell that I have quoted. Indeed, Evans-Lombe J refers to the McKew case and others when considering the test for what may constitute a break in the chain of causation from a particular act of negligence. He says (citing a dictum of Roskill LJ in the Court of Appeal in Lambert v Lewis [1982] AC 225 at 252C) that the act need not necessarily be reckless. Evans-Lombe J states, correctly in my view, that "what will constitute such conduct is so fact-sensitive to the facts of any case where the issue arises that it is almost impossible to generalise".
  53. I would accept that there is, inevitably, a degree of tension between: (a) certain conduct of a claimant such that the defendant whose liability for prior negligence is established is not responsible for the consequences of events following that conduct; and (b) certain conduct of a claimant which is such that the defendant remains responsible for those consequences, but his liability is reduced because the claimant is held to be contributorily negligent within the terms of the Law Reform (Contributory Negligence) Act 1945. After all, a claimant will only be held contributorily negligent under section 1(1) of 1945 Act if (a) he has been at "fault", ie. he has not acted with reasonable care in the circumstances, and (b) that "fault" has had a causative effect on the injury or other damage.
  54. The line between a set of facts which results in a finding of contributory negligence and a set of facts which results in a finding that the "unreasonable conduct" of the claimant constitutes a novus actus interveniens is not, in my view, capable of precise definition. The cases I have referred to have provided guidance. But, in my view, each case will depend on the facts and, in Lord Nicholls' phrase, the court will have to apply a value judgment to the facts as found.
  55. In the present case the judge considered with meticulous care the facts, the arguments and the law. He found (paragraphs 81 and 82) that Mr Spencer's decisions to fuel his unmodified car without the assistance of others, not to attempt to put on his prosthesis and not to use his sticks were, in the circumstances, not unreasonable. He concluded that Mr Spencer's conduct "fell far below what could be described as McKew unreasonable. Insofar as the way he went about the task should be taken into account, that is a matter of contributory negligence".
  56. Despite the cogency of his argument, Mr Nolan has not persuaded me that the judge's approach was wrong in law. Nor has he persuaded me that the judge's value judgment (to use Lord Nicholls' phrase), or the judge's approach to "fairness" (in Lord Bingham's word) was wrong. The judge's conclusion that the "chain of causation" was not broken, so that Wincanton is liable for the consequences of the second accident, subject to a reduction for Mr Spencer's contributory negligence, cannot be faulted.
  57. For those reasons, I would dismiss this appeal.

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