It must remain uncertain which judge, or which textbook writer, first used the phrase “You must take your victim as you find him.” Almost certainly he was speaking, or writing, in the context of the criminal law. In 1841 Maule J relied on the writings of Sir Matthew Hale (1609 to 1676) when directing a jury in the case of R v Holland (1841) 2 Mood & R 351. In that case the victim of an assault disregarded medical advice that he should have his injured finger amputated. Two weeks later he died of lockjaw. Maule J directed the jury that it was open to them to find that the original wound was the cause of the victim’s death (which they then did). He was relying on Sir Matthew Hale’s Pleas of the Crown which robustly stated that any person who inflicted an injury resulting in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself.
In 1975 this precedent was relied on by the prosecution in the famous case of R v Blaue [5] 3 All ER 446. The defendant in that case attacked and repeatedly stabbed an 18-year-old girl who was a Jehovah’s Witness by religious faith. In accordance with the tenets of that sect she refused a blood transfusion, well knowing that she would die without one. At his trial for murder the defendant argued that the decision in R v Holland was no longer valid, because it dated from an age when it was often a reasonable course of action for an injured person to refuse hospital treatment. The trial judge (Mocatta J) refused to accept this argument and directed the jury as follows:
This is one of those relatively rare cases, you may think, with very little option open to you but to reach the conclusion that was reached by your predecessors as members of the jury in R v Holland …
The jury acquitted the defendant of murder, but convicted him of manslaughter on the ground of diminished responsibility (ie a form of mental abnormality less severe than complete insanity). The defendant appealed to the Court of Appeal on the ground that the victim’s own decision to reject a commonplace form of medical treatment had been the cause of her death, not his criminal assault upon her. The Court of Appeal rejected this argument. Lawton LJ did so using the following words:
It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs … were unreasonable. The question for decision is what caused her death. The answer is the stab wound.
This principle, that you must take your victim as you have found him, is wide enough to cover cases where the victim of violence has had the misfortune to receive delayed or negligent medical treatment, making his injuries worse or even fatal: R v Smith [9] 2 QB 35. It also applies to cases where the victim has ceased to live, or to show signs of life, after being removed from a life-support machine: R v Malcherek [1981] 2 All ER 422. Only in very exceptional cases, where the victim has been subjected to “palpably wrong” medical treatment, can the defendant seek to deny liability for the ultimate consequences of a criminal assault: R v Jordan (1956) 40 Cr App R 153.
Victims in the law of tort
When Mocatta J directed the jury in R v Blaue, the law of tort, by process of development, was a very different thing from what it had been in 1841. One of the new issues which had not been resolved was whether liability for a negligent accident extended to each and every one of the direct consequences of that accident, or only to those consequences which were reasonably foreseeable. The former view had been followed by the English Court of Appeal in Re Polemis & Furness Withy & Co [1] 3 KB 560, but the latter view had been preferred by the Privy Council in The Wagon Mound [1961] 1 All ER 404. (Both cases involved ships suffering damage, or causing damage, as a direct but surprising result of apparently trifling acts of negligence.)
In Smith v Leech Brain & Co [1] 3 All ER 1159, Lord Parker CJ refused to accept that any such dilemma existed in the case of a factory accident causing personal injuries. In that case Mr Smith, a factory worker, was burnt on the lip by molten metal. This accident was caused by the negligence of his employers in failing to maintain a safe system of work or to provide adequate safety equipment for him. The burn appeared to be a trifling injury at the time, but shortly afterwards it led to cancer, and then to secondary tumours, and, despite treatment, he died some three years later. The medical evidence showed that Mr Smith had been pre-disposed to develop cancer because he had previously worked at a gasworks, exposed to tar and vapours, for nine years. Lord Parker CJ refused to limit the employers’ financial liability to the immediate effects of the burn. Although as a matter of general principle he personally preferred the decision of the Privy Council in The Wagon Mound to the decision of the Court of Appeal in Re Polemis, he had no doubt that it was the Re Polemis principle which applied to cases involving personal injuries.
For my part, I am quite satisfied that the Judicial committee of the Privy Council in The Wagon Mound did not have what I may call, loosely, the “thin skull” cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him.
— per Lord Parker CJ [1] 3 All ER 1159 at p 1161.
Lord Parker’s reference to the “thin skull” cases was a reference to the dicta of Kennedy J in Dulieu v White & Sons [1] 2 KB 669 at p 679 (a case involving nervous shock). Kennedy J had observed in that case that:
If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.
This principle is also applicable in cases where the plaintiff has been caused psychological injuries as a direct result of the defendant’s negligence.
In Chadwick v British Transport Commission [7] 2 All ER 945 damages were awarded to the estate of Mr Chadwick, a man who, some 10 years earlier, had participated as a rescuer at the scene of the Lewisham train disaster. Because of the shock of what he had seen there (90 people had been killed) he became a victim of “catastrophic neurosis”, no longer took any interest in life, and became unable to work for a considerable time. Although the judge (Waller J) took note of the fact that Mr Chadwick had suffered from psychoneurotic symptoms in the past, this had been so long ago (16 years before the train disaster) and the shock which he had suffered was so great that the decision seems to be based upon the view that it was reasonably foreseeable that almost any rescuer could have succumbed to similar symptoms.
The same, however, cannot be said about Meah v McCreamer (No 1) [5] 1 All ER 367 or about Attia v British Gas [1987] 3 All ER 455. In the first case, the plaintiff sustained serious head injuries in a motor car accident. Prior to that accident he had had a criminal disposition, but this took the form of crimes of dishonesty. After the accident he suffered a marked personality change and started to commit sexual offences and crimes of violence against women. He was eventually sentenced to life imprisonment. The medical evidence established that, but for the head injuries, he would not have suffered the personality change. He was awarded £60,000 (reduced by 25% to take account of his own contributory negligence in travelling with a driver whom he knew to be drunk). Two of his victims subsequently sued him for damages for assault and recovered £10,250 and £6,750 respectively. When he attempted to recover these damages additionally from the insurers of the negligent drunken driver this claim was unsuccessful: Meah v McCreamer (No 2) [1986] 1 All ER 943.
In Attia v British Gas the plaintiff suffered nervous shock caused by having to watch her house burning down and the fire brigade attempting to put out the fire. (It took more than four hours to get the fire under control.) The plaintiff had not been in any personal danger because she had been returning home when she saw the fire. She had not had any cause to fear for anybody in the house, and her anxiety had been caused for her house and its contents alone. The defendants (whose workmen had negligently caused the fire) denied that they were responsible for nervous shock in these circumstances. The Court of Appeal allowed such a claim because the medical evidence showed that the plaintiff had suffered more than emotional distress and had succumbed to “psychiatric damage”. The court emphasised, however, that such damage had to be reasonably foreseeable as a question of fact.
It should not be thought that the maxim “you must take your victim as you find him” always favours the plaintiff in a civil action.
There will be occasions when the victim of an accident is, come what may, fated to have a truncated working life or a future of chronic disability. For example, he may have a pre-existing condition of osteo-arthritis which, prior to normal retirement age, is likely to render him unfit for work. If, in the meantime, he is seriously injured in a factory accident, he will not be able to claim any damages for loss of earnings beyond the date when he would have become unfit for work in any event.
In such a case his employer will be able to “take his victim as he finds him”.
Impecunious victims
Where a negligent act leads to damage to property it is often the case that the victim of that damage is not able to afford to repair or to replace the damaged property until he is paid in full. Since this will take time to obtain, and may not be freely offered in any event, the consequences of delay may devalue the victim’s property still further and/or increase the costs of repair. It is, therefore, a common problem to ponder whether the perpetrator of a negligent act (eg a motor car collision) should be compelled to “take his victim as he finds him” when that victim is financially embarrassed and unable to act quickly to mitigate his loss. At common law, the general rule is that the defendant in such a case is not liable for the consequences of the plaintiff’s impecuniosity. Thus, in a case involving the negligent sinking of a dredger, Lord Wright observed:
The law cannot take account of everything that follows from a wrongful act … it were infinite to trace the cause of causes or the consequences of consequences.
— per Lord Wright, in Liesbosch Dredger v Edison [3] AC 449.
However, in some cases, the plaintiff’s failure to carry out repairs (eg to a damaged building) is deemed to be a reasonable commercial decision, especially in a case where the defendant is disputing liability. Thus, in Dodd Properties (Kent) Ltd v Canterbury City Council (1979) 253 EG 1335 the Court of Appeal held that the owners of a building damaged by the vibrations from pile-driving operations carried out next door were entitled to defer carrying out repairs until they knew the outcome of the litigation. Damages were therefore assessed at the date of the hearing (1979), not at the earliest date when the work could have been carried out (1970). The Court of Appeal took account of the “financial stringency” (not amounting to impecuniosity or financial embarrassment) which the owners would have faced if they had carried out the repairs in 1970.
A similar decision was reached by the Court of Appeal in an action for negligence (and breach of contract) brought by a house-purchaser against a firm of chartered surveyors: Perry v Sidney Phillips & Son (1982) 263 EG 888. The Court of Appeal held that the impecuniosity of the house-purchaser was not the only reason why he failed to repair a defective roof and a smelly septic tank (which the surveyors had failed to notice). The denial of liability by the surveyors had also acted as a deterrent to carrying out repairs and, accordingly, the house-purchaser was entitled to additional damages for the inconvenience of living in a defective house for five years. (A defendant who is disputing only quantum, and not liability, can avoid this consequence by admitting liability at an early stage in the negotiations.)
Victims in the law of contract
Perry v Sidney Phillips illustrates how the personal circumstances of a victim of a breach of contract may influence the damages awarded to him. If Mr Perry had been a wealthier man, or a man with a second home, his inconvenience from the defects in the house might have been less.
If he had been a family man, with a termagant wife and a house full of children, his distress might have been multiplied. (In holiday contracts which go awry, it is now well recognised that the contracting party can claim for his family’s distress and disappointment, no less than for his own: Jackson v Horizon Holidays Ltd [5] 3 All ER 92.)
Just as it is not open to the perpetrator of a criminal assault to criticise the religious beliefs of his victim (see R v Blaue (above)), it is not open to the perpetrator of a breach of contract to criticise his victim’s decision not to pursue innocent third parties against whom he may have some contractual redress. Thus, in London & South of England Building Society v Stone (1983) 267 EG 69, a building society sued a valuer who, in valuing a house for the purposes of a mortgage, failed to notice that it was suffering from severe subsidence.
In order to protect its commercial reputation, the building society carried out repairs at its own expense and did not enforce the repairing obligations in the mortgage against the house-purchaser. It was held by the Court of Appeal that the building society was entitled to recover the amount of the mortgage advance (and the legal costs of investigating title) from the valuer, without any deduction. (The Court of Appeal disagreed with the trial judge who had deducted £3,000 to take account of the fact that some part of the mortgage money could have been recovered from the house-purchaser by way of a personal action for debt, even if the house remained unrepaired and valueless.)
Statutory claims
It is not possible to generalise about whether the maxim we are now discussing has any application to statutory claims. In the field of compulsory purchase, for example, it clearly has no relevance, except where Parliament has expressly or impliedly allowed the personal circumstances of a property-owner to be taken into account. (Compensation on an “equivalent reinstatement” basis, or, in the case of elderly businessmen, on a “total extinguishment” basis, are, perhaps, two examples of the general rule being relaxed in this way.)
The statutory right to claim compensation (from an industrial tribunal) for unfair dismissal is expressly made subject to the common law rule that the employer must take his victim as he finds him — at least in those cases where the victim’s circumstances make it difficult (or impossible) for him to mitigate his loss. Section 74(4) of the Employment Protection (Consolidation) Act 1978 requires the industrial tribunal to apply “the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law”.
In Fougere v Phoenix Motor Co Ltd [6] ICR 495, the Employment Appeal Tribunal held that the age, health and other “personal characteristics” of a former employee were relevant when considering the assessment of a compensatory award for unfair dismisal. In Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498, the Employment Appeal Tribunal held that it was reasonable for a former managing director of a company to set up a business as an independent consultant instead of looking for salaried employment, even though he earned considerably less money in the short term by so doing.
In Ignarski v British Broadcasting Corporation (EAT/524/90, February 27 1991, unreported) the Employment Appeal Tribunal considered the case of Mrs Ignarski, a married woman with two young children who had been unfairly dismissed from her employment as a news production typist with the BBC World Service, working always at night. Had alternative night work not been available, the Employment Appeal Tribunal held that it would have been reasonable for Mrs Ignarski to work as a lower-paid, self-employed typist at home rather than to incur the increased costs of child-care by taking salaried employment during the day. Not only were the employee’s “personal characteristics” relevant but also his or her “personal circumstances” and, to that extent, the employer had to take his victim as he found him (or her).
Burden of proof
The burden of proving that a plaintiff (or an applicant, in an industrial tribunal case) has failed to mitigate his loss rests upon the defendant (or respondent): Fyfe v Scientific Furnishings Ltd [9] IRLR 331. If it is shown that the victim of an accident has refused to take ordinary steps to mitigate the effects of that accident (eg if a damaged ship refuses to be towed to safety, or if an injured patient refused to undergo a surgical operation) the burden of proof will lie upon the victim to show that his refusal was a reasonable one: The Guildford [1956] 2 All ER 915; Selvanayagam v University of the West Indies [1983] 1 All ER 824.
If, however, a person in immediate peril makes an error of judgment in the agony of the moment, this error will not be held against him: Jones v Boyce (1816) 1 Stark 493 — a case where a passenger on a runaway coach sought to mitigate his loss by jumping off the coach, and consequently became more injured by jumping than if he had stayed put. If a person negligently creates a peril he must take his victim as he finds him — bewildered, panic-stricken, or uncomprehending if need be. As the Court of Appeal observed about the horrific collision off Tripcock Point in the Thames (September 3 1878), in the agony of the moment “it is unrealistic to expect men to be more than mere men”: The Bywell Castle (1879) 4 PD 219.
