In Dalling v Heale & Co  EWCA Civ 365 a claimant suffered a head injury while at work due to the admitted fault of the defendant.
This left him with executive dysfunction which caused various problems including poor memory and concentration, some emotional problems and impaired ability to plan ahead. The executive dysfunction also reduced his ability to control his drinking habit. Prior to the accident the claimant occasionally drank to excess but not to the point where he could not stand up. After the accident he frequently drank to excess and did not know when to stop. On more than one occasion after the accident he fell down due to being drunk.About 3½ years after the first accident, the claimant fell down while drunk and suffered a further head injury. The defendant argued that this was a break in the chain of causation as getting drunk was an act of the claimant's own volition. The claimant retained an ability to control his drinking as, after the second accident and an ultimatum from his partner, he had markedly reduced his drinking.
The judge found that the head injury sustained in the first accident had a causative effect in relation to the second accident and that it was fair and just that the defendant be held liable in damages following the second accident. However, he found that the claimant was one third contributorily negligent. The Court of Appeal upheld the judge's decision.
The judge had correctly applied the two stage test, namely whether the defendant's tort had, on a balance of probabilities, played a causative part in his getting drunk on the occasion of the second accident and secondly whether it was fair to hold the defendant responsible. The judge had also, albeit implicitly, applied his mind as to whether the claimant's act of getting drunk was an act of free volition and had concluded it was not. The first head injury had not completely destroyed the claimant's ability to control his drinking but had impaired it so that the defendant was substantially responsible for the happening of the second accident.
Jane Clifton / 1st Jun 2011
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