Surveillance Evidence and Breaking the Chain: The Court’s Approach in Haley v Newcold Ltd [2025]

It is unusual for a judge to have to decide the motives behind an elective below the knee a amputation, however this is exactly what the judge was required to do in the recent case of Hayley v Newcold Ltd [2025].

Background of the Personal Injury Claim

The claimant, Aaron Haley, brought proceedings against his former employer, Newcold Ltd, following a workplace accident on 19 March 2019. Mr Haley was struck by a forklift truck, suffering a severe crush injury to his right foot, including significant degloving and a burst fracture of the calcaneus. Initial treatment involved debridement, a gracilis free flap, and skin grafting. While the treating surgeons were optimistic about recovery (estimating 9–12 months), and the claimant was discharged from physiotherapy in February 2020. The expert in the claim estimated the risk of below-knee amputation at that stage was low, around 5–10%. The claimant accepted a 20% reduction for contributory negligence.

Nearly 5 years after the accident, on 13 March 2024, the claimant underwent a below the knee amputation of his injured leg, claiming the amputation was caused by the accident.

Issues Before the Court

The main issue before the court was whether the claimant's amputation was caused by the accident.

The court cited Clerk and Lindsell on Torts and explained that case law required the court to analyse whether the accident was the effective legal cause of the amputation, not merely a factual "but for" cause.

The principles for reaching the decision were set out in Corr v IBC Vehicles Ltd [2008]

"Where the defendant's conduct forms part of a sequence of events leading to harm to the claimant, and the act of another person, without which the damage would not have occurred, intervenes between the defendant's wrongful conduct and the damage, the court has to decide whether the defendant remains responsible or whether the act constitutes a novus actus interveniens i.e. whether it can be regarded as breaking the causal connection between the wrong and the damage.” After noting that a novus actus may take the form of conduct by the claimant…, the text says: “Whatever its form the novus actus must constitute an event of such impact that it ‘obliterates’ the wrongdoing of the defendant”.’

The judge applied the principle that, for a defendant to be held liable, it must be fair and reasonable to attribute the subsequent loss to the original negligence. If the claimant’s conduct was so unreasonable or overwhelming in its impact that it “obliterated” the defendant’s wrongdoing, it would break the chain of causation.

The claimant argued that "but for" the accident, he would not have required amputation, and that his decision was a consequence of pain and disability caused by the accident. The defendant, on the other hand, contended that the claimant’s amputation was not a necessary consequence of the accident, but amounted to a novus actus interveniens that broke the chain of causation. Essentially, that it was the claimant's decision which was made voluntarily and not because he was placed in a position in which the decision had to be made.

The evidence

As you can imagine in these cases, much weight is given to the evidence before the court. In this case, the court place significant weight on the objective evidence such as physical measurements and surveillance footage, over the subjective accounts of witnesses and the parties' experts. Both experts were criticised during the trial, for issues such as inconsistences in their evidence and for failure to include evidentiary support for their opinions.

It was, however, the surveillance footage that ultimately prove fatal to the claimant's claims that his pre-amputation level of pain and disability was the cause of his decision to have the amputation.

By the claimant's own admission, he was playing darts 5 days a week, did not want to try any other potential treatments such as a hot water bottle to relieve the pain and on a weekly basis, played Airsoft. Much was said about Airsoft, but for those readers who may not be aware, this is a game described as a physical combat simulation game where plays are hit by pellets fired from replica firearms and usually involves quick movements (walking, running, turning or pivoting) to avoid being hit. All of these factors were deemed a contraindication to the claimant's pain being so severe that he required amputation.

In addition to the above, the defendant adduced much surveillance footage of the claimant that was taken between 12 August 2023 and 19 January 2024 (two months prior to amputation). The surveillance footage was found to be inconsistent with the symptoms and disability presented by the claimant, namely that the claimant was shown on numerous occasions to be walking with a heel strike, which is inconsistent with the 'unbearable pain' the claimant was alleging. This footage, when considered with the fact that both the claimant's calfs were measuring the same (if one leg was not being used in the same manner as the other, there would be a size difference in the muscle) and there was hardening on the skin of the heel, which was consistent with heel strike. Footage was also included of the claimant playing crazy golf showing him moving freely. There was only one occasion where the claimant was seen using a crutch but this was the date of his assessment with one of the experts. On the day in question the claimant was seen walking normally and carrying the crutch to the car.

Whilst it was accepted that there may have been days that the claimant did not leave the house due to pain, the judge stated: "I do not find it plausible to the extent it is being suggested, that in all the days of surveillance, there was not a single day, save for the day when the Claimant was due to see Mr Simmons for the purpose of medico-legal examination, that his pain was of a level that did not render him housebound, but did necessitate the need for the use of a single crutch".

Conclusion

In consideration of all of the evidence before the court, the judge found that "the effective cause of the amputation was not the accident but the Claimant's own conduct, which I consider amounts to a supervening event".  The court was unable to draw any conclusions on the claimant's motivation to undergo such a procedure, and the defendant had not advanced any positive case on that issue. Given the court's decision as to the voluntary nature of the amputation, it deemed it unfair to hold the defendant liable.

Key takeaways

This case highlights the importance of a true analysis of causation, and the court's willingness to go beyond the simple 'but for' test and ensure the defendant's negligence must be the 'effective' cause of the loss.

The surveillance footage in this claim was fundamental in the judge's decision-making process. Gathering objective evidence that clearly demonstrates a claimant conducting themselves contrary to their own claim can be pivotal for supporting arguments of novus actus interveniens. Always ensure this evidence is analysed in full by any experts for comparison to the claimant's own medical evidence.

Another point to remember is that experts are not infallible. Their evidence should always reference the supporting materials they are relying on, and any changes in opinion should be presented to the court in the appropriate way, and especially not during the trial.

As Leggat J confirmed in Gestmin v Credit Suisse at paragraph 22, "the best approach for a judge to adopt in the trial of a commercial case is, in my view to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth"

For further information on any of the issues raised in this case, please contact Gavin Reese.