Last reviewed 9 September 2016
Barrister Robert Spicer considers cases where pre-existing injuries or medical conditions were raised as issues in compensation claims.
Exacerbating underlying degenerative condition
In the recent case of HP v Terex Equipment Ltd (2015), the Scottish Outer House gave guidance on the effect of an underlying degenerative condition on liability in negligence.
HP, a factory worker, slipped in water that had leaked through a roof while he was carrying heavy chains. He lost his balance and suffered a soft tissue injury to his lower back.
HP claimed compensation from his employer and alleged that an underlying degenerative condition in his left shoulder had been exacerbated and accelerated by five years. He also claimed that he suffered a moderate depressive episode requiring treatment, lasting approximately one year.
A colleague of his gave evidence that HP did not normally work in the area where the accident happened, that he had slipped immediately upon setting off and that the colour of the floor, combined with reflection from lighting, made it difficult to see water on the floor.
The employer admitted liability but argued that HP had been contributorily negligent and that there was no causal connection between the incident and HP’s shoulder injury or his psychiatric injury. On behalf of HP, it was submitted that he had not been working in his usual workplace at the time of the incident and had been carrying out a difficult task where neither he nor his colleague had seen the water before the incident, so no reduction should be made for contributory negligence.
The court decided that the claim succeeded. It made the following points.
The employer had failed to discharge the burden of proof incumbent upon them and no contributory negligence had been shown.
HP’s account was supported by his colleague and by medical records.
HP was a credible witness as to the events of the incident and when the pain in his shoulder had first occurred.
The evidence supported the conclusion that HP’s left shoulder problems and depression since the date of the incident were causally connected.
Pre-existing spinal degeneration
The issue of pre-existing medical conditions where workplace injuries are suffered has been considered by the courts on a number of occasions.
A recent example is the Court of Appeal case of Environment Agency v Ellis (2009). E was employed as a plant machinery driver by EA. In June 1998, he fell from his machine at work and suffered a back injury. The employer accepted responsibility for the incident.
In April 2000, E fell on the stairs at his home and suffered further injury. He argued that this incident had been caused by the workplace injury. In 1998, E had been diagnosed as suffering from a symptomless spinal degeneration which would have developed regardless of the injury of June 1998.
At first instance, the court found that E’s condition had been substantially caused by the initial injury and that the fall downstairs was causally related to that incident. E was awarded £290,404 compensation plus interest.
EA appealed, arguing that the award should take account of three causes. There should be an apportionment between the pre-existing spinal degeneration, the June 1998 incident and an incident in May 1999 when E missed his footing on a ladder and was off work for five months.
The Court of Appeal dismissed the appeal. It made the following points.
The issue in the case was whether two other known causes should reduce the amount of compensation.
E’s pre-existing condition was not a cause of the April 2000 fall. It was an example of the “eggshell skull” principle and but for the June 1998 incident, none of the events would have happened.
The eggshell skull principle
The “eggshell skull” principle is a well-established doctrine of English law. In summary, a defendant must take his or her victim as he or she finds him or her. For example, in 1901 the High Court stated that if a man is negligently run over or otherwise negligently injured, it is no answer to the sufferer’s claim for damages that he or she would have suffered less injury, or no injury at all, if he or she had not had an unusually thin skull or an unusually weak heart.
A leading case in this area, in an industrial context, is Smith v Leech Brain & Co Ltd (1962). The facts, in outline, were that S worked for L as a galvaniser. His work involved lifting material by crane into a tank of molten metal. An object spattered from the tank and burned his lip. The burn was a promoting agent of cancer which caused his death three years later. S had a predisposition to cancer in his skin tissue. The court decided that the employer was liable for the death. The cancer was not too remote from the original negligence.
Another example is the Scottish case of McKillen v Barclay Curle & Co Ltd (1967). The claimant suffered a fractured rib in a workplace accident. He alleged that this had reactivated his pre-existing tuberculosis. At first instance, he was awarded compensation for the tuberculosis. Applying the general principle that a wrongdoer takes his victim as he finds him. This decision was reversed on appeal on the basis that the claimant had failed, on the evidence, to prove the causal connection between the fractured rib and the tuberculosis. Medical evidence in such cases can be crucial.
In the leading case of Paris v Stepney Borough Council (1951), P worked in the council’s trucks maintenance garage. He had been blinded in one eye during the war. He successfully managed to conceal this from his employers until he was examined by a doctor for the purposes of the council’s superannuation scheme. When the employer discovered that he was blind in one eye, he was given two weeks’ notice of dismissal. Two days before he was due to leave, as he was working underneath a truck, a piece of metal flew into his functioning eye and blinded him. He claimed compensation from the council on the basis that he, as an individual with extra susceptibility of serious injury, should have been provided with goggles.
The House of Lords upheld his claim. It ruled that the duty to take reasonable steps by an employer for preventing injury to employees is owed to each employee individually. In this case, the provision of goggles to P would have been reasonable even if no goggles were provided to other men doing the same kind of work.