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The Court of Appeal handed down its decision in Reaney v University Hospital of North Staffordshire on 2 November 2015, allowing the Defendant Trust’s appeal against the first instance decision of Foskett J (Queen’s Bench Division,  EWHC 3016).
The Claimant Mrs Reaney experienced a sudden onset of back pain and associated increasing weakness in her legs around 30 December 2008, which led to her being admitted to the A & E Department of Stafford Hospital. She was transferred to the North Staffordshire Royal Infirmary that day, and a diagnosis of spontaneous transverse myelitis was confirmed. This caused non-negligent damage to the Claimant’s spinal cord leading to permanent paralysis below the mid-thoracic level (T7 paraplegia). She was 61 years of age at the time.
The alleged negligence in this case arose subsequently over the course of the Claimant’s extended period of hospitalisation, when she developed a number of deep pressure sores, with consequent infection of the bone marrow, hip dislocation, serious contractures of the lower limbs and increased lower limb spasticity. Her seating posture was permanently damaged by the hip dislocation so that she was unable to use a standard wheelchair safely. She was also left with a large area of vulnerable skin after the pressure sores healed. She now requires 24-hour care and assistance on a daily basis by two carers, being left largely bed-ridden. She will need to move to a larger property to accommodate the carers.
Liability was admitted by the Defendant, and the key issues at the trial before Foskett J were the question of how far the pressure sores and their consequences had made the Claimant’s position worse than it would have been but for the Defendant’s negligence, and which of Mrs Reaney’s subsequent care needs were attributable to this negligence.
Foskett J found as a matter of fact that, but for the pressure sores and their consequences, the Claimant would have been able to live largely independently, albeit with some family support and supervision. Her bowel and bladder problems would be less severe than they were as a result of the pressure sores, and she would most likely have required around 7 hours of local authority support per week until the age of 70, from which point her care needs would gradually have increased up to the amount she is currently receiving (around 31.5 hours per week). She would only have needed one carer until she required hoisted transfers from around the age of 75, at which point two carers would have become necessary. She would also have needed fewer physiotherapy sessions per year than she currently does.
Foskett J concluded that the Defendants were liable to compensate Mrs Reaney in full for all of her care, physiotherapy and accommodation costs, on the basis that their negligence had made her position materially and significantly worse than it would otherwise have been, and “a tortfeasor must take his victim as he finds him and if that involves making the victim’s current damaged condition worse, then he (the tortfeasor) must make full compensation for that worsened condition.” [at paragraph 70 of the High Court decision]He also awarded £115,000 for pain, suffering and loss of amenity, applying the bracket of general damages for paraplegia identified in the Judicial College Guidelines and then reducing this figure in view of “the materially worse position that the consequences of the admitted negligence have led to.” [at paragraph 78]
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Court of Appeal decision
In a unanimous decision the Court of Appeal set aside the findings made by Foskett J, applying Baker v Willoughby  AC 467. It rejected the argument by the Claimant (Respondent at appeal) that because Foskett J found that the care required as a result of the Appellant Trust’s negligence was qualitatively different from the care that would have been required but for the negligence, there was no basis for disturbing his overall conclusion on the issue of causation. The Court instead considered that the care package Mrs Reaney now requires is only quantitatively, but not qualitatively different from what would have been required in the normal course of events by a T7 paraplegic in the Claimant’s position. Although it was accepted that Mrs Reaney’s current physiotherapy needs were somewhat different in character as a result of the negligence, overall her care package was considered to be simply ‘more of the same’ as it would otherwise have been. Accordingly the Defendants could only be held liable for the additional care required by Mrs Reaney as a result of their negligence.
Lord Dyson in his leading judgment also emphasised that it was irrelevant that there might be a compensation gap in cases like the Claimant’s where there is no tortfeasor to be held liable for her initial injury, i.e. the non-negligent onset of transverse myelitis. The key question for the purposes of establishing the extent of a tortfeasor’s liability is whether and to what extent the Claimant has suffered loss as a result of the negligence of the person who has caused the loss.
The Court distinguished the decision in Sklair v Haycock  EWHC 3328 (QB), relied upon by Foskett J in his judgment, on the basis that in Sklair, the 24-hour care regime for the Claimant (who suffered from Asperger’s Syndrome) necessitated by a road accident attributable to the Defendant’s negligence “could properly be described as qualitatively different from that which had been previously needed,” which had been limited to general supervisory care of an otherwise mainly independent life.
Significance of the judgment
The Court of Appeal decision could be considered to signal a return to what are thought to be settled principles of law, after a brief period of uncertainty following the earlier High Court decision, (particularly from the defendants’ perspective). However, especially in the context of clinical negligence claims, which frequently feature both non-negligent and negligent injuries sustained by claimants, it now raises the issue of a funding gap if defendant NHS trusts are not held liable to cover the non-negligently incurred aspects of a claimant’s care needs that might otherwise have been provided by a local authority or gratuitously in the absence of other sources of funding.
One practical implication of the decision is likely to be a greater level of scrutiny by both claimants and defendants on whether each head of loss claimed by claimants under special damages can properly be described as quantitatively or qualitatively different from care and treatment which a claimant would have been expected to require in any event without a negligent deterioration, particularly in respect of future losses. Where there is an obvious difference in the type of care necessitated by the tortfeasor’s negligence, such as in Sklair, this may be an easier issue to resolve, but in high risk clinical specialities where patients often enter a clinician’s care with co-morbid conditions, claimants may find that they are now being put to proof that a potentially high value head of care costs would not have been incurred by the claimant in any event. Claimant solicitors may therefore wish to pay particular attention to these heads of claim in pleadings and when instructing experts. Much may also come down to what a judge or parties perceive to be a qualitative difference, as exemplified by the discussion in Reaney as to whether Mrs Reaney’s current carers required more specialist training than they would have done in the non-negligent course of events or the precise character of her post-negligence physiotherapy programme. This will of course in turn add to the costs incurred by parties particularly in reliance on care experts.The other interesting issue which arises from Reaney is the matter of causation, as highlighted by the very different approaches taken by Foskett J and by the Court of Appeal to Bailey v Ministry of Defence  1 WLR 1052 and its application to facts like these. While Foskett J considered that, even without the establishment of conventional ‘but for’ causation he would have been inclined to find that the Defendants had “materially contributed” to the condition that led to the need for Mrs Reaney’s 24-hour care package, the Court of Appeal firmly put aside Bailey as having no part to play in resolving the issue where there was no doubt either about the Claimant’s medical condition before the Defendants’ negligence occurred or about the injuries that she sustained in consequence of that negligence. The latter approach would again appear to be the more conventional statement of law, but the decision has still left open the possibility that in cases where the issue of causation may not be completely clear-cut, the claimant who manages to convince the court that Bailey should apply should then still be allowed recovery for all care costs necessitated by the claimant’s condition.