Key Facts
- •Alun Jenkinson (Claimant) suffered a fractured right ankle due to an uncovered manhole on Panshanger Lane, Hertford (December 21, 2017).
- •Hertfordshire County Council (Defendant) admitted liability but disputed the extent of injury.
- •Defendant's orthopaedic expert, Mr. Machin, reported that the initial surgery was negligently performed, leading to further surgeries and a poor prognosis.
- •Defendant sought to amend its Defence to introduce a causation defence, arguing that the negligent initial surgery by the NHS Trust was a novus actus interveniens.
- •District Judge Vernon refused permission to amend the Defence.
- •Defendant appealed the refusal.
Legal Principles
Assessing loss in tort involves factual and legal causation; every tortfeasor compensates for loss they are justly responsible for; later negligence doesn't always extinguish earlier tort's causative potency.
Various authorities cited by DJ Vernon
Medical treatment breaking the chain of causation only if 'grossly negligent as to be a completely inappropriate response' to the initial injury (the 'Specific Rule').
Webb v Barclays Bank and Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141
There is no general rule that later negligence always extinguishes the causative potency of an earlier tort. Each tortfeasor is responsible for the loss and damage for which they should justly be held responsible.
Rahman v Arearose Ltd [2001] QB 351
Whether intervening conduct is a novus actus interveniens depends on all circumstances, including the quality of the later act; was it deliberate or unreasonable? Was it foreseeable? Is it wholly independent of the defendant?
Clerk & Lindsell on Torts, Chubb Fire Ltd v Vicar of Spalding [2010] EWCA Civ 981, Hogan v Bentinck West Hartley Collieries (Owners) Ltd [1949] 1 All E.R. 588
Outcomes
Appeal allowed.
The District Judge misdirected himself by applying the non-existent 'Specific Rule'. There is a real prospect that the initial surgery's negligence was so significant that the defendant shouldn't be responsible for its consequences.