Court holds amputation not related to accident at work

This article was co-authored by Joanna Oleszek, Litigation Executive.

Judgment has been handed down on 16 October by HHJ Walsh following a trial of a preliminary issue in a claim brought by Mr Haley against his former employer, Newcold Limited, finding that despite a severe crush injury to the claimant’s foot, the subsequent below knee amputation was not attributable to the initial accident.

Background

On 19 March 2019, during the course of Mr Haley’s employment, he was involved in an accident when he was struck by a forklift truck operated by a colleague.

Liability was compromised, subject to a 20% reduction for contributory negligence.

Mr Haley suffered a serious crush and degloving injury to his right foot. Despite a relatively optimistic prognosis, nearly 5 years after the accident, Mr Haley underwent a below knee amputation of his injured leg.

Mr Haley alleged that the amputation was caused by the accident. Newcold disputed this.  The Court ordered a trial of a preliminary issue, namely:-

‘Was the elective below knee amputation of the Claimant’s right leg in March 2024 caused by the accident the subject of this claim in March 2019?’

Mr Haley’s position

It was agreed, in complex injuries such as that suffered by Mr Haley, that there remained a risk of a below knee amputation; his position was that that low risk materialised.

Mr Haley asserted that the extent and frequency of pain, which at times had become ‘unbearable’, along with restriction of movement or lack of function, and consequent restrictions in his social and work life, rendered the amputation necessary.

He asserted that ‘but for’ the accident, he would not have undergone the amputation.

Newcold’s position

Newcold’s position was that the totality of the objective evidence in this case, which included considerable records from various sources, an understanding of Mr Haley’s recreational activities (playing walking football, darts, snooker, crazy golf and airsoft – all of which required prolonged periods on his feet) and covert video surveillance evidence (taken over an extended period of time), demonstrated that Mr Haley’s condition and level of function did not justify his decision to amputate.

HHJ Walsh’s findings

Newcold would be liable for losses arising out of the injury caused in the accident unless there was a novus actus. To assess this, there needed to be a determination on the totality of the evidence as to whether the effective cause of the amputation was the original negligence, or whether that cause had been eclipsed by another cause so that it is not the effective cause in law. The Judge was critical of Mr Haley finding he was not a credible witness, was an unreliable historian and had misled the Court on a number of occasions. The Court could not simply accept Mr Haley’s subjective evidence and needed to look at the other evidence.

The surveillance evidence was considered truly independent and demonstrated Mr Haley’s actual level of function at various points in time. He did not have a limp and nearly all the surveillance was inconsistent with someone in ‘unbearable pain’.

Mr Haley’s variety of leisure activities did not fit well with someone who was experiencing ongoing ‘unbearable’ or chronic pain and altered function in their foot. Nor did the rejection of other available treatment options.

It was Mr Haley who was pushing for the amputation. His treating surgeon did not have the full picture. His surgeon did not know he played Airsoft, which is a physical sport simulating combat situations. This could be considered an unusual hobby choice for somebody contemplating amputation.

HHJ Walsh preferred the opinion of Newcold’s expert, Mr Simmons, who said the amputation was ‘unnecessary on clinical grounds’. Mr Simmons was a clear and persuasive witness whose evidence was logical and well-reasoned. Mr Haley’s expert, Professor Harris, was not particularly open to reconsidering his opinion despite considerable evidence to the contrary. His evidence was also lacking the detail found in Mr Simmons’ evidence.

Mr Haley had improved and was effectively functioning normally in the months and weeks prior to amputation.

HHJ Walsh found the level of pain and function attributable to the accident was not the cause of the amputation but Mr Haley’s own conduct which amounted to a supervening event. This conduct was so wholly unreasonable and/or of such overwhelming impact, that it eclipsed Newcold’s wrongdoing and broke the chain of causation

Mr Haley’s submission that a finding of a novus actus for non-negligent medical treatment ‘would represent a considerable development in the law’ was rejected. So too was the submission  that a finding of a novus actus for non-negligent medical treatment constituted an unlawful interference with his right for private life as guaranteed under Article 8(1) ECHR 1998.

Comment

The ‘but for’ test is only the starting point for causation. Consideration needs to be given to the effective cause having regard to the totality of the evidence. An act which may be causally connected can still break the chain of causation. The degree of unreasonable conduct to break the chain is one of fairness.

It is unfair to hold a tortfeasor liable, however gross the breach of duty may be, for damage caused by some independent supervening cause for which the tortfeasor is not responsible.

Fairness demands that the tortfeasor’s liability must end where the negligence was merely the occasion, rather than the effective cause of the harm.

Mr Haley was entitled to act as he wished but ultimately this was not Newcold’s responsibility. 

Newcold were represented by Dominic Nolan KC of Hailsham Chambers, instructed by Richard McKeown, Ian Ford and Joanna Oleszek of Kennedys.