Injuring the injured: quantifying the defendant’s liability
Reaney v University Hospital of North Staffordshire NHS Trust
High Court (QBD)
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.
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.
The correct legal approach
On the basis of the decisions in Performance Cars Limited v Abraham ,Baker v Willoughby  and Steel v Joy  the defendant submitted they were only liable to compensate the claimant for any losses attributable to the additional disability which they had caused over and above her pre-existing disability. On the facts of the case, the defendant argued that the claimant's schedule “in almost its entirety could reasonably have been presented as a Schedule for T7 paraplegia” and that the claimant had established no material additional need arising from the additional disability caused.
Mr Justice Foskett considered these authorities as well as Rahman v Arearose Ltd  but distinguished them, as for practical purposes they all involved cases where there were alternative potential compensators to be pursued for either the original or subsequent injuries. The key points of his judgment were:-
A defendant cannot be held to be liable for loss or damage that it did not cause or to which it made no material contribution.
But for the negligence of the hospital, the claimant's needs would have been met by a combination of Local Authority carers and her own family.
While he accepted the defendant’s general submissions, as a matter of law he saw this as a case which reflects the principle that a tortfeasor must take his victim as he finds him. He referred to footnote 94 to paragraph 2-31 in Clerk and Lindsell on Torts, 20th Ed. which reminds the reader that "the fact that the defendant’s breach of duty has worsened an existing condition may lead to a higher assessment of the loss, since the consequences of the impairment may be greater” and goes on to say “it is much worse to be totally deaf than half deaf, when the additional hearing loss (from half to totally deaf) causes greater damage than the initial hearing loss (from full hearing to half deaf)”. The footnote also refers to Paris v Stepney Borough Council  from which it derives the proposition that “loss of an eye is significantly worse for a one eyed man than a man with full eyesight”.
In his judgement, on the evidence, the defendant’s negligence had made the claimant's position materially and significantly worse than it would have been but for the negligence.
Even if he had any doubts about the “but for” approach to causation, he would have been inclined to find the defendants had “materially contributed” to the claimant's condition.
While he was unclear about the extent to which the defendant asserted that any credit should be given against the value of the claim in the "but for scenario", for present purposes he believed that he needed to say was that he respectfully agreed with the sensible, compassionate and principled approach to this kind of issue taken by Edwards-Stuart J in the High Court decision in Sklair v Haycock .
For further information please contact Philip D'Netto, Partner, on 0161 603 4966
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.