I have had a second injury since my accident – will it affect my claim?

The purpose of a compensation claim is to try – as far as a monetary sum can – to put victims of negligence back into the position they would have been had they not been injured. This sounds simple, but in reality proving what difference a negligent injury has made to an individual’s life raises complex questions of fact and law. In cases where someone has suffered a second injury after an initial negligent injury (which I will refer to as “second injury” cases in this post) these issues become particularly acute and require extra careful investigation.

The case law on second injury cases

The complexities inherent in second injury cases are represented by two House of Lords decisions. Both of these cases dealt with similar factual scenarios, but they had starkly different outcomes:

Baker v Willoughby [1970] AC 467

The claimant suffered severe injuries to his left leg in a road traffic accident. The defendant (the driver at the relevant time) had been negligent and was liable to compensate the claimant for his injuries.

Ahead of a trial on the claim’s value, the claimant was the victim of a burglary. He was shot in his left leg and it had to be amputated.

The claimant could not prove that he would have avoided the leg amputation if he had never been injured in the car accident. Therefore, as a matter of fact, from the time of his leg amputation onwards the defendant’s negligent driving had no ongoing effect on the claimant’s physical condition.

Nevertheless, the House of Lords found that the claim was unaffected by the amputation. They held that the lifelong losses for which the claimant sought compensation existed before his leg amputation and had not been diminished by it. Therefore, the second injury was irrelevant to the valuation of his claim.

Jobling v Associated Dairies Ltd. [1982] A.C. 794

The claimant was a manager in a butcher’s shop. He suffered a prolapsed disc as a result of a fall at work which caused him somewhat disabling back pain. The defendant (his employer) was liable to compensate him for this accident.

As a result of his prolapsed disc the claimant had lifelong reduced earning capacity and he sought compensation accordingly. However, in advance of the trial of his claim, the claimant was diagnosed as suffering from myelopathy (a nervous system disorder affecting the spinal cord). This rendered him completely unable to work.

By contrast with Baker v Willoughby, the House of Lords found that the second injury had to be taken into consideration. The Lords therefore found that the claimant was entitled to damages for lost earnings but only up until the point he stopped working because of the myelopathy. He could not claim lost earnings from this point onwards, because as a matter of fact he was from then on unable to work irrespective of any contribution made by the prolapsed disc to his overall disability.

In practice – investigations after a second injury

Legal practitioners should take their cue from Jobling more so than from Baker. The former is more recent authority that has been cited approvingly and adopted in subsequent case law. The latter, whilst never explicitly overruled, has not been followed and has been doubted by subsequent decisions (including by Jobling itself). Ultimately, Baker flies in the face of the overarching principle that in tortious claims the claimant must first establish – as a matter of fact – that a loss would have been avoided but for negligence before any compensation can be awarded for it.

That is not to say that in all cases second injuries will necessarily result in a reduction in the value of a claimant’s claim. Every case must be determined on its own facts. In practice, where a claimant has suffered a second injury, the following questions should be considered:

1. Does the second injury overlap with the first injury?

This is the category that both Baker and Jobling fall into. In such cases, practitioners must consider whether the second injury causes some or all of the same losses as the negligent injury. If there is a degree of overlap, it will be important to establish the extent of this and what bearing it will have on the overall claim.

2. Has the second injury been caused by the negligent injury?

In some cases, it may be possible to prove that the claimant has suffered a second injury because of a negligent injury. For example, a claimant may suffer a fracture in a fall because their balance system is impaired following a traumatic brain injury.

Defendants faced with such cases will most likely seek to argue that any second injury has not been caused legally by its negligence.  However, if a claimant can overcome these arguments, they may be entitled to compensation for the second injury in addition to their initial injury.

3. Does the second injury make the first injury substantially worse?

This scenario could be seen as the counterpoint to that in Baker and Jobling. An example of such a case would be where a claimant loses sight in one eye as a result of negligence, but then goes on to lose sight in their remaining eye because of a subsequent non-negligent reason. In such a case, a claimant could be entitled to seek compensation for total blindness, with a discount for the fact that they would have been partially sighted in any event in the absence of negligence. However, there would most likely be difficult arguments to overcome about legal causation, and whether the second injury broke the chain of causation from the defendant’s original negligent act.

Conclusions

If nothing else, what the above analysis makes clear is that second injury cases are unusually complex. It is therefore important for legal advisors to keep abreast of significant developments in their clients’ health. If they discover that a client has suffered a second injury, this will require careful investigation with substantial input from the claimant’s medico-legal experts to determine its significance for the claim.