I'm interested in…

  • Strategy & Procedure
  • Catastrophic Injury
  • Professional Indemnity
  • Motor
  • Fraud
  • Disease
  • Liability
  • Commercial Insurance
  • Costs
  • Local Authority
  • Scotland

Injuring the injured: quantifying the defendant’s liability

Reaney v University Hospital of North Staffordshire NHS Trust
High Court (QBD)
19/09/2014

Philip D’Netto reviews this recent High Court decision which looks set to reopen the debate about how to quantify the defendant’s liability when a claimant has a pre-existing injury.  The generally accepted approach is that a defendant should only be liable to compensate a claimant for the damage it has caused or materially contributed to.  Mr Justice Foskett, however, saw this case as a reflection of the principle that a tortfeasor must take the victim as he finds him.

Background

The claimant was aged 67 at date of trial.  When she was 61, she experienced a sudden onset of back pain with associated increasing weakness in her legs.  She was admitted to the A&E department at Stafford Hospital and then transferred to North Staffordshire Royal Infirmary where a diagnosis of transverse myelitis was confirmed. Transverse myelitis is a very rate inflammatory condition causing damage to the spinal cord.  She was effectively rendered a T7 paraplegic. 

During an extended period of hospitalisation the claimant developed a number of deep (Grade 4) pressure sores with consequential osteomyelitis (infection of the bone marrow) flexion contractures of her legs (abnormal shortening of the muscle tissue) and a hip dislocation. The defendants admitted this was due to negligence on their part but the parties disagreed over the extent of the consequences of the negligence and how the damages should be determined.

First Mr Justice Foskett considered the “but for” test (namely what would have been the claimant’s likely position but for the pressure sores and their consequences) and the “post-pressure sores scenario”.  He then went on to look at the correct legal approach to determining the amount of damages payable.

The “but for" scenario

The judge carried out the “but for” test to assess the effect of the negligent management on the claimant’s condition. There was a dispute between the parties’ spinal injuries consultants, Mr Gardner for the claimant and Mr Tromans for the defendant in respect of the extent of the claimant’s care needs absent the accident.

The claimant expert’s view was that the claimant would have managed transfers independently with a sliding board at least until age 70, by which time she would probably have required some assistance with transfers and greater assistance (in the form of hoisted transfers) at the age of 75. The defendant expert suggested that her previous complaints of shortness of breath and shoulder problems would have prevented her from achieving independent transfers.

Mr Justice Foskett preferred the evidence of the claimant's expert on the point and found the appropriate “but for” scenario for the claimant's condition was that she would have required approximately 7 hours of professional care each week until age 70, gradually increasing visits from a Local Authority carer until age 75, and then from age 75 onwards a total of 31½ hours a week again from the Local Authority.

The consequence of the defendant’s negligence was that the claimant now requires 24/7 care from two carers.

Comment

At first blush the approach adopted by the judge appears to be counterintuitive. In practice, the correct approach is to say that if the effect of the negligence whether in an accident or otherwise has been to increase the claimant's care needs by X hours a day then that increase is the appropriate measure of damages.  However, the courts have not followed this approach in both Sklair and now Reaney. As Kemp and Kemp highlighted when discussing Sklair, in this different approach “the claimant’s compensation is assessed without any concern for his condition or needs at the time of the accident.” Mr Justice Foskett’s judgment appears to have been influenced by the fact there was no compensator available for the “but for” scenario. We suspect that he might not have arrived at the same outcome if there had been a separate tortfeasor in relation to the underlying paraplegia.

It is also submitted that in adopting the “material contribution” test the judge has confused a test for causation with quantification. The material contribution test has traditionally been used to resolve disputes where there are multiple tortfeasors rather than apportioning symptoms between competing causes.

The parties still have to make submissions on quantum in this case although Mr Justice Foskett has indicated he is attracted to the Sklair approach namely that the defendant is only entitled to credit for expenditure the claimant would have had to incur in the “but for"  scenario. This would appear to be manifestly unfair to the defendant. For example in this case the claimant would have required ground floor accommodation but taking into account the defendant’s negligence she now probably requires larger accommodation.  Should the defendant pay for this in its entirety? Does a personal injury claim transform a need which would have been met by the Local Authority/family member absent the accident to one which requires private funding now?

The difficulty for defendants in many cases is  that if the claimant's care on the “but for” scenario would have been provided by the Local Authority and/or family members, then a court will be reluctant to allow any discount for this. 

This case demonstrates the difficulties insurers and lawyers have to deal with where claimants have pre-existing disabilities and the apparent injustice that finding a solution is able to cause to defendants. Having said that this is only a first instance decision and ultimately the issue may have to be resolved by a higher court.

Contact

For further information please contact Philip D'Netto, Partner, on 0161 603 4966

By Philip D'Netto

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Top