Dalling v R J Heale & Co Ltd [2011] EWCA Civ 365  

The defendant (D) appealed against a decision in the County Court awarding the claimant (C) damages for an injury that occurred three years after the tortious act for which they were liable.

In March 2005, C sustained a severe head injury whilst working for D. As a result of his injury, he suffered from poor concentration, impaired memory, problems motivating himself, variation in his moods and aggression. He also suffered from problems with excessive drinking.

Prior to the accident, C rarely drank to excess. Following his recovery, he began drinking heavily. In October 2008, whilst in a pub, he sustained further head injury as a result of falling backwards whilst drunk. He claimed he was entitled to damages for both the original accident at work and the subsequent accident in the pub as it was his brain injury that had caused him to drink to excess.

At first instance, the judge accepted that C’s brain injury had reduced (but not eliminated) his ability to control his drinking and he was more susceptible to the effects of alcohol so became drunk more quickly. He was awarded damages for both injuries but these were reduced by one-third for the second accident for contributory negligence.

D appealed against the award of damages for the second accident on the basis that there had been a break in the chain of causation. C’s drunkenness was a voluntary act that was a novus actus interveniens.

The Court of Appeal reinforced the two-stage test, which needed to be considered (as set out in Kuwait Airlines v Iraqi Airways 2002). The first stage is the ‘but for’ test; the second is a test of fairness. D accepted that there was a causal connection and the first stage of the test had been met.

When looking at the issue of fairness, the Court of Appeal refused to set down absolutes for determining the second stage. The court said it had to consider, in the second stage, whether it was just or unjust to hold D liable. The court accepted the judge’s decision that the second accident was the fault of both C and D and, accordingly, there had been no break in the chain of causation. The appeal was dismissed.