Wednesday 28 January 2015

Reaney V North Staffordshire NHS Trust

Reaney V North Staffordshire NHS Trust:
Does This Represent A Change In The Law?

By Killian Garvey, Kings Chambers Pupil

It is trite law that a defendant may only be liable to compensate a claimant for the damage it has caused him or to which it has materially contributed. Moreover, it is well established that a defendant must take its victim as it finds him (which may be to its advantage or disadvantage). This latter principle, known as the ‘egg-shell skull rule’, derives from Mackinnon LJ’s speech in the case of Owens v Liverpool Corp [1939] 1 KB 394, whereby he said:

One who is guilty of negligence to another must put up with idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one

Applying these principles to a hypothetical scenario, one can see how they can potentially serve to limit a defendant’s liability. So, for example, consider the situation whereby a claimant requires 3 full-time carers. If they were a healthy, independent individual prior to the defendant’s negligent act, then they can now claim for paying these 3 carers. However, if the claimant had a pre-existing disability from a non-negligent act, whereby they already had 2 full-time carers that were provided for by their local authority, their claim would be limited to the one additional carer they now require.

This approach has been followed for decades. However, some seem to think that this is no longer the case, in light of the recent decision in the case of Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016. Some now seek to rely on Reaney in support of the view that the claimant, in the hypothetical scenario posed before, can now claim for the 3 carers, irrespective of their previous care needs. I suggest that this is wrong and based on a misunderstanding of Foskett J’s judgment in this case. 

Mrs Reaney had a very serious spinal injury that preceded the Defendant’s negligence. This injury essentially put her in the same position as a T7 paraplegic. The Defendant admitted that they were responsible for a deep (grade 4) pressure sore, which exacerbated Mrs Reaney’s pre-existing disability. Prior to the Defendant’s negligence, Mrs Reaney received gratuitous care from her husband and 7 hours of professional care a week from the local authority. After the negligence, Foskett J held that Mrs Reaney now needed 2 carers offering 24-hour care, 7 days a week.

The Defendant contended that due to Mrs Reaney’s pre-existing disability, the extent of her additional care needs should be limited. Thus, it was submitted, on behalf of the Defendant, that were they held to be liable for the full extent of Mrs Reaney’s care needs, they would be compensating her not only for the pressure sores, but also for her underlying paraplegia. Instead, their liability should be confined to only ‘topping-up’ the care she would have otherwise needed but for the negligence. The Defendant asserted, therefore, that the correct approach to the assessment of Mrs Reaney’s care needs was to assess the Claimant’s care needs globally, give credit for the care that was being provided already, take account of the care that she needed pre-negligence but was not receiving and therefore limit the additional care to that which arose from the pressure sores.

However, Foskett J preferred the position advanced by the Claimant’s representatives, which was simply to consider factually what care the Claimant was receiving pre-negligence and then to consider what she needed now. Indeed, at paragraph 68 of the judgment (subsection ii and iii), Foskett J stated:

(ii)  Although the Claimant needed two carers on a 24/7 basis, she did not receive
      such care because she could not afford it and the local authority was only able to
      provide the levels of assistance described above …
(iii) As already indicated, the Claimant’s future care requirements for the rest of her
     life fall to be assessed on the basis that she requires 24/7 care from two carers ...

So, returning to the title question: does this represent a change in the law? It is submitted that it does not. It follows from the age-old approach in tort of putting the claimant back into the position they would otherwise have been in.

Arguably, the most interesting point arising from this decision is that even if the Claimant had pre-existing care needs, if they were not being met, then they cannot be deducted from the calculation. So, returning to the hypothetical scenario posed before. If the Claimant had 2 full-time carers pre-negligence and now needs 3 carers, their claim would be limited to this additional carer. However, if the Claimant needed 2 full-time carers pre-negligence but was not receiving any care, then arguably Reaney suggests that they can still claim for the 3 carers.

The views expressed by the writer are not necessarily those of Kings Chambers.

Border v Lewisham

Border v Lewisham confirms the importance of consent and what issues can be raised at appeal

By Richard Borrett

In the recent Court of Appeal case of Border v Lewisham the Claimant had suffered an injury as a result of a cannula being inserted into her arm, despite the Claimant telling the doctor that she had recently had a left mammectomy and axillary node clearance, and that inserting a cannula into her left arm carried the risk of oedema.

The trial judge had found that the doctor had made a quick and silent decision that the left arm was the only viable site for the insertion of the cannula and did so without communicating this to the patient. The Judge had found that this was in accordance with recognised practice and was not negligent. 

The Claimant appealed on the basis that the lack of consent meant the treatment was negligent. The Defendant argued that the Claimant had 'impliedly consented'. 

The Court of appeal held ([24]):
"The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it (see, for example, Chester v Afshar [2004] UKHL 41[2005] 1 AC 134)."

This is certainly not a ground-breaking case, but it does reinforce the importance of consent, even where a course of treatment may be in accordance with recognised practice.

Additionally the case raised an important procedural point. The issue of consent was not seen by the Claimant's counsel as an important part of the case. It was not in his skeleton, and the Judge obtained apparent indications during the trial that consent was 'not the issue'. The CA said that "Thus the judge was right to consider that neither party was attaching importance to the issue at the trial" (22).

However the CA said ([24]):
"It seems to me to be open to the claimant to contend on the appeal that the finding that the procedure was carried out without the claimant's consent should have led the judge to find a breach of duty on the part of Dr Prenter even though that was not the way the claimant's case was being advanced at trial". 

This conclusion was based on the fact that the issue had been pleaded, where the allegations of negligence included "Failing to heed the warning given by the Claimant that she should not have any injections into her left arm …" and "Proceeding to place an intravenous cannula into the Claimant's left arm when the Claimant objected to this" ([23]).

This may be a useful decision therefore in cases where there are a wide range of allegations of negligence, and an appeal is sought on an issue which, though pleaded, was not perhaps the 'thrust' of the case at trial.