In 1973 P, who was expected to work until 1985 suffered an injury due to his employer’s, D’s, negligence which would reduce his capacity to work by 50% for the rest of his working life. Independently of this, in 1975, he contracted a disease that totally incapacitated him. Does D have to pay him 50% for 3 years or 50% for 12? HL say for 3 years, since “the myelopathy (totally incapacitating disease) could not be disregarded since the court must provide just and sufficient but not excessive compensation”.
Lord Wilberforce: there are no overall rules that can govern this type of case that are universally fair and the best the courts can do is to assess just compensation on a case by case without rationalisation/exposition of universal guidelines/principles. Bad for legal certainty + inconsistency potential.
The “vicissitudes” argument was adopted by several judges: that the contingencies/vicissitudes of life can change a person’s fortunes and it would be wrong to ignore them when arriving at a fair settlement: the courts “should not speculate when they know” (Lord E-D). Problem is that this fails to reconcile Jobling with Willoughby. The House of Lords criticised the ruling in Willoughby on the grounds that it did not comply with the vicissitudes principle- Lord Reid. The problem with the vicissitudes argument is that it prioritises “potential causes” over “actual causes”. In this case half the disability was caused by the negligence and the rest completed by the disease. If the disease had struck first then it would have been the cause, but as it happens the negligence happened first and caused half the disability. The fact that another “concurrent cause” (to use the Willoughby language) operates to complete the disability does not change what the original cause was or the fact that it is still operating: The vicissitudes argument assumes that there is only ever one cause, which is incorrect.
Lord Keith said that he would reconcile Willoughby with the present case by saying that Willoughby was restricted to cases where there were two tortious acts, unlike the present case. Lords Bridge and E-D imply a desire to overrule Willoughby.