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.

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