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Injuring the injured: the ‘but for’ test survives

Reaney v University Hospital of North Staffordshire NHS Trust
Court of Appeal
2/11/2015

The Court of Appeal in Reaney v University Hospital of North Staffordshire NHS Trust has this month clarified the principles involved in quantifying a claim when a claimant already has a pre-existing condition. David Woolley reviews the decision which confirms that the defendant should be responsible only for the claimant’s additional needs.

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 rare 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.

The Court of Appeal addressed the question of whether the defendants should be liable for (i) all of the claimant’s care needs resulting from the pressure sores and their consequences (as Mr Justice Foskett had held) or (ii) those needs less the needs that she would have had but for the negligence (as the defendants who brought the appeal contended)?

The 'but for' test survives

The critical conclusion of Mr Justice Foskett whose decision was the subject of the appeal was:

“She would not have required the significant care package (and the accommodation consequent upon it) that she now requires but for the negligence…”

He considered the requirement of 24/7 care from two carers for the rest of the claimant’s life was “materially different from what she would have required but for the development of the pressure sores and their sequelae”. This finding led him to conclude that the claimant was entitled to full compensation of all her care, physiotherapy and accommodation costs.

In considering the appeal Lord Dyson MR emphasised the well versed maxim that defendants are entitled to take their victim as they finds them. The defendant’s negligence had not rendered the claimant a T7 paraplegic. The claimant already, as a result of her paraplegia, had considerable care and other needs. Importantly, Lord Dyson MR explained that if the defendants’ negligence had caused the claimant to have care and other needs which were “substantially of the same kind as her pre-existing needs, then the damage caused by the negligence was the additional needs. On the other hand, if the needs caused by the negligence were qualitatively different from her pre-existing needs, then those needs were caused in their entirety by the negligence”.

Lord Dyson MR was somewhat scathing of Mr Justice Foskett’s reasoning. He considered Mr Justice Foskett was wrong to take into account whether there was someone from whom the claimant could have recovered compensation for the losses she had suffered other than by the defendant’s negligence. The question was put very simply by Lord Dyson MR:

If a person has caused the loss, he is liable to compensate the claimant for it. If he has not, then he is not liable.

 

Comment

Some commentators had welcomed Mr Justice Foskett’s decision and advocated it represented an extension to the eggshell skull rule. They submitted that claimants could now recover full compensation where pre-existing injuries had been made materially worse by a defendant’s subsequent negligence. The Court of Appeal has put an end to that and confirmed that the traditional ‘but for’ test survives.

One can understand the frustrations felt by Mr Justice Foskett when faced by a claimant who he knew would on a proper application of the ‘but for’ test not be able to put in place the full regime which she reasonably required. He was however wrong to make the defendants liable for those additional costs and this decision by the Court of Appeal will come as a relief to the insurance industry. 

Contact

For further information, please contact David Woolley, Associate on 0161 604 1638

By David Woolley

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.

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