Quantity not quality

News | Mon 9th Nov, 2015

The decision of Foskett J in Reaney v University Hospital of North Staffordshire NHS Trust  [2014] EWHC 3016 (QB) (rightly) caused some excitement in the legal blogosphere when it was handed down in October 2014. It appeared that he had extended the familiar eggshell skull rule by holding that a Defendant who had injured a woman with pre-existing care needs was liable to compensate for her full care needs not just the additional needs. That decision has now been overturned by the Court of Appeal [2015] EWCA Civ 1119  who draw a useful distinction between qualitatively and quantitatively different care needs.

The Facts

Mrs Reaney, was admitted to hospital in December 2008 with transverse myelitis. As a result she was permanently paralysed below the mid-thoracic level and classified as a T7 paraplegic. It was common ground that this was not caused by any negligence. As a result of a prolonged hospital stay she suffered pressure sores. It was admitted that this was caused by the Defendant’s negligence. As a result of the transverse myelitis she was always destined to be confined to a wheelchair for the rest of her life. It was found that but for the development of the pressure sores, the Claimant would have required some professional care, increasing as she got older. But as a result of the pressure sores and their resulting complications, she would require 24/7 care from 2 carers for the rest of her life.

The Decision of Foskett J

Foskett J with reference to Paris v Stepney Borough Council [1951] A.C. 367 held at ¶69 that while a Defendant is only liable to compensate for damage which he has caused or to which he has materially contributed, where he has made the Claimant’s position substantially worse he must make full compensation for that worsened condition. He therefore concluded that she was entitled to full compensation for all her care, physiotherapy and accommodation costs, including the care she would have required but for the negligence.

The Decision of the Court of Appeal

This conclusion was firmly rejected by the Master of the Rolls who held at ¶18 that the tortfeasor must compensate for the condition in which the Claimant finds herself only to the extent that it has been worsened by the negligence.

The rule that a Defendant must take his victim as he finds him is, as the Defendant had argued before Foskett J (¶53), sometimes to a Defendant’s disadvantage and sometimes to their advantage. A Defendant who injures someone with a pre-existing vulnerability, such as the famous eggshell skull, is liable for the full loss flowing from his negligence. However, in this case, it was right that the loss should reflect that the Defendant had injured a T7 paraplegic who already had significant care needs.

In fact before the Court of Appeal it was, perhaps surprisingly, common ground between the parties that if the Defendant’s negligence gave rise to substantially the same kind of care and other needs as her pre-existing needs, then the damage caused by the negligence was only the additional needs. However, if the care needs flowing from the negligence were qualitatively different from the pre-existing needs, then those needs were in their entirety caused by the negligence. This view was endorsed by Dyson MR at ¶19.

The Claimant’s unsuccessful case on appeal was, therefore, that Foskett J had found the care needs arising from the tortious act to be qualitatively different and so there was no need to disturb his overall conclusion.

The Master of the Rolls dealt with the question raised as to the position where there was no means of recovery of the underlying loss. He was firm that the ability to recover for the underlying loss was irrelevant and that a person can only ever be liable for the loss they have caused.

Comment

At first blush the Court of Appeal’s decision appears to have brought welcome clarity. Foskett J’s judgment, while perhaps giving an attractive result, was not easy to reconcile with the earlier authorities. However, as shown by the point taken by the Claimant before the Court of Appeal, it leaves open significant scope for argument as to when a care need is qualitatively different from pre-existing needs. Those advising both Claimants and Defendants will in future cases of this sort want to scrutinise carefully the differences between the care packages and be ready with arguments as to why those differences should be found to be qualitative or quantitative as appropriate.

Finally, as unattractive as this result might seem, there is still nothing to stop a court applying the principle in Paris v Stepney Borough Council and making a higher award for PSLA to reflect the fact that the consequences of injury may be substantially worse for an already injured person.