It is a well-established principle in injury and medical claims law that a defendant must “take their victim as they find them”. For example, a driver runs a red light and hits a man using a pedestrian crossing. At the time of the accident, this man was using a walking frame because he had problems with his right hip. The impact shatters the man’s left arm. The man is no longer able to use the walking frame and becomes wheelchair-bound. The driver will be responsible for this. He cannot argue that if it wasn’t for the hip problems, the man would not be wheelchair bound. The impact is of the injury is greater than to the average man who has no pre-existing mobility problems, but the driver’s insurers will still be responsible for paying a higher level of compensation for the effects of the injury on someone with a pre-existing vulnerability.
What about when it comes to care and assistance for the now wheelchair-bound victim? Will the insurers be responsible for paying for all of the care and assistance the victim now requires even though he previously needed some help before because of his hip problems?
The case of Reaney v University Hospital of North Staffordshire NHS Trust & Anr addressed this. This is not a newly decided case but it has become relevant to one of my cases involving an elderly claimant who had mobility and neurological issues before a negligently performed operation rendered her wheelchair bound. Although it has not yet reached that stage, it is likely there will be a tussle between the experts in relation to what type and level of care my client would have needed in any event given her pre-existing problems.
In Reaney, the claimant argued the negligent hospital was responsible for paying for all of her care and assistance. Ms Reaney had been diagnosed with non-negligent damage to her spinal cord causing permanent paralysis. The claimant had obvious care and assistance needs resulting from this. However, during her lengthy hospital admission, due to the hospital’s negligence, she developed pressure sores which caused an infection of the bone marrow, hip dislocation and spasticity. As a result of this, the claimant required extra care and assistance.
At first instance, it was held that the hospital was responsible for paying for all of Ms Reaney’s care on the basis that the negligence had made her condition materially and significantly worse. The hospital appealed. They argued they should only be responsible for paying the difference between what care the claimant needed as a result of being paralysed and what extra care she required after the infection. For example, she only required one carer as a result of the paralysis, whereas after the infection she required two carers. It was argued that the defendant should only be responsible for paying for the second carer, not for both of them. The Court of Appeal agreed. They held that the hospital must compensate for her condition only to the extent that it has been worsened by the negligence. Although Ms Reaney’s care package had increased significantly, the type of care was the same. There was no change in the level of expertise and skills of the carers, it was “quantitative” rather than “qualitative”.
Although this may seem unfair to the lay person, the reasoning is sound. To the lawyer, careful consideration should be given to the need for expert evidence surrounding what is “quantitative” and what is “qualitative”. The difference in the value of a claim could be quite substantial.