Reduction for Supervening Events

Heil v Rankin and another (CA TLR 20 June)

The claimant was a police dog handler. In 1987 he had been involved in a serious and frightening criminal incident. In 1993 an incident involving the first defendant caused him minor injury and also triggered a condition of post traumatic stress disorder, which had initially manifested itself after the 1987 incident, and he was unable to continue in the police force. The judge had discounted the sum that would otherwise represent the claimant’s loss of earnings to retirement by 75% to reflect the risk that he would not in any event have served until retirement age. The Court of Appeal rejected the claimant’s argument that if an actual second tortious act could not be relied on to reduce damages in respect of the first tortious act then, a fortiori, a hypothetical second tortious act, that had not yet occurred, could not be relied on in reduction of damages. If future tortious acts had to be ignored, even though they were, as they were found to be in this case, a foreseeable, indeed likely source of early termination of the claimant’s employment, but the claimant none-the-less had to be compensated on the basis of full employment to retiring age, then it seemed self-evident that he would be compensated for sums that the tort had not caused him to lose. However, in applying what had become known as the ‘visissitudes’ principle the judge had discounted the claimant’s chance of working to retirement too heavily. The assessment of 25% was too low and an assessment of 50% would be substituted.