The Court of Appeal handed down judgment on 2 November 2015 in the case of Christine Reaney v University Hospital of North Staffordshire NHS Trust and Mid-Staffordshire NHS Foundation Trust.

Background

Mrs Reaney was admitted to hospitals run by the Defendant Trusts between December 2008 and October 2009.  During her admission, and as a result of admitted negligence, she developed grade 4 pressure sores with consequent osteomyelitis, flexion contractures of the hip and knee joints and permanent hip dislocation.  It was agreed evidence that, but for the negligence, Mrs Reaney was destined to be permanently wheelchair bound.

The Decision at First Instance

The issue at first instance was the extent to which Mrs Reaney’s post negligence care needs should be met by the Defendants, in light of her pre-existing condition. 

The Claimant pleaded the case on the basis that the negligence had caused identifiable new injuries and in expert evidence set out what her needs would have been in the but for scenario, distinguishing those from the post-negligence position.  In her Schedule the Claimant sought to give credit on a conventional basis for those needs.  Rather than accepting credit, however, the Defendants took the more radical approach of arguing that the issue to be decided was not one of quantification of loss, in relation to which credit would come into play, but was instead one of primary causation of loss.  They argued that, as they did not cause the entirety of the need, to consider the but for needs in terms of credit was wrong.  The Defendants thus did not address the Court on how credit should be given. 

The Claimant’s evidence was that the negligently caused injuries were responsible for transforming her from an individual with some quality of life, who could spend her waking hours out of bed in a wheelchair, able to self propel and undertake some basic household tasks, to someone who was confined to bed for 20 hours a day and only able to sit out in her wheelchair for 4 hours at most.  She was turned from someone who would have required only limited, non-skilled care at fixed points in the day, to someone confined to bed for 20 out of every 24 hours and who now required specialist, skilled care from 2 carers on a 24 hour basis to meet the negligently caused needs. 

Foskett J preferred the Claimant’s expert evidence over the Defendants and awarded the Claimant a significant sum, reflecting the severity of her injuries. 

At paragraph 72 of his judgment Foskett J commented

I remain unclear about the extent to which Mr Feeny asserts that any credit should be given against the value of the claim assessed on the basis I have indicated for the notional cost of meeting the Claimant’s needs in the “but for scenario”, but for present purposes all I believe I need to say is that I respectfully agree with the sensible, compassionate and principled approach to this kind of issue taken by Edwards-Stuart J in Sklair...If there remains any dispute about any matter of deduction it should, in my judgment, be resolved by reference to the way it was resolved in that case

The Issue on Appeal

The Defendants were granted permission to Appeal on the issue of causation of loss.  They argued that the judge had erred in his application of the law to the facts and had awarded the Claimant compensation for all of her needs, including those  arising in the but for scenario on account of her pre-existing disability.  The Defendants did not appeal against the findings of fact. 

The Claimant (Respondent in the Appeal) argued that the Judge had not made the Defendants pay full compensation for the Claimant’s present position without regard to her pre-existing injury.  It was the Claimant’s case that the extent of the damages awarded to the her reflected the Judge’s view that her post-negligent needs were qualitatively different to her but for needs and that, as such, the Defendants had been found to have created the whole of the current need and thus they were held responsible for all of it. 

The Claimant referred to Sklair v Haycock [2009] EWHC 3328 as authority for the approach that, where a breach of duty had led to the need for an essentially different care regime post negligence, when contrasted with the pre-negligence regime, that later regime could be recovered by the Claimant in full. 

Findings of the Court of Appeal

The Court of Appeal made findings important to Claimants and Defendants in cases of pre-existing injury.  The Court considered the case of Sklair stating at paragraphs 32 and 33 of its judgment:

this decision can be explained and supported on the basis that the defendant has caused the loss represented by the need for a 24 hour care regime providing support to Mr Sklair in all aspects of his life.  In other words, the decision can be justified as based on an issue of causation, although that is not how it was analyzed by the judge.  The care regime required after the accident could properly be described as qualitatively different from that which had previously been needed (and would have been needed in due course.)  But for the accident, the claimant would have required general supervisory care of an essentially independent life.  This was to be contrasted with his need for personal support in a 24 hour care regime as a result of the accident.

 

It follows that the argument summarised by Edwards-Stuart J at para 73 and rejected at para 74 of his judgment was correct.  It focused on the causation question and impliedly asked whether the care required as a result of the accident was qualitatively different from that which would have been required but for the accident.  It was wrong to describe this approach as a fallacy.  With respect to him, it seems to me that it was Edwards-Stuart J who confused the question of need for the care (a causation question and relevant focus of the enquiry) with the question of who will or would have paid for it (which could only be relevant to the quantification of damages.)  The question of “giving credit” for the costs that would have been avoided is irrelevant to the question of causation. 

The Court therefore endorsed the case of Sklair, but in relation to causation rather than credit thereby supporting the contention that if needs in the post-negligent scenario were qualitatively different to the pre-negligent scenario than the awarding of those in their entirety to the Claimant is correct. 

It follows that if Foskett J had made explicit that this was the basis on which he had awarded the Claimant all of her current needs, the Judgment would not have been open to challenge. 

In the event, as the Court of Appeal considered that Foskett J’s Judgment had not been so expressed, his findings on this point were not allowed to stand and the case was remitted to him to assess damages in light of the Court of Appeal’s judgment.