Reaney -v- University Hospital of North Staffordshire NHS Trust The sequel: a further judgment but still riddled with uncertainty?

On 8 August 2016 Mr Justice Foskett handed down the latest in a series of judgments that have been given on this long running case, Reaney -v- University Hospital of North Staffordshire NHS Trust.  In November 2015 the Court of Appeal determined an issue of law and referred the case back to Mr Justice Foskett (the trial judge) for the quantification of Mrs Reaney’s damages.  Unfortunately the latest judgment did not resolve the outstanding quantum issues and the parties were sent away to attempt to agree a "satisfactory settlement" to avoid the need for further written submissions or another hearing.

There have now been four reported judgements on this case and it can be argued that there is still uncertainty as to the correct approach while quantifying damages in cases where the claimant has a pre-existing (non-negligently caused) injury.  Before reviewing the current landscape it is worthwhile refreshing our memory of the facts of Mrs Reaney’s claim.

At the time of the trial before Mr Justice Foskett in September 2014 Mrs Reaney was 67 years of age.  In December 2008 she was diagnosed with transverse myelitis.  This condition arose spontaneously (non-negligently) and unfortunately Mrs Reaney failed to recover in any significant way and became paralysed below the mid-thoracic level.  She was classified as a T7 paraplegic.  During an extended period of hospitalisation Mrs Reaney developed a number of deep pressure sores with consequent osteomyelitis (an infection of the bone marrow), flexion contractures (abnormal shortening of the muscle tissue) of her legs and a hip dislocation.  The defendant acknowledged that the pressure sores, and the consequent problems, were caused by their negligence.

As a result of the transverse myelitis Mrs Reaney was always going to be confined to a wheelchair.  The issue that arose before Mr Justice Foskett was the extent to which her pressure sores, and their associated medical issues, made her condition worse.  The issue for Mr Justice Foskett was, therefore, to identify the correct level of damages to be paid by the defendant in respect of Mrs Reaney’s condition where the consequences of the negligently caused injuries superimposed upon the pre-existing non-negligently caused disability.

Mr Justice Foskett concluded that on the evidence the defendant’s negligence made the claimant's position materially and significantly worse than it would have been but for the negligence.  The effect of this decision was that Mrs Reaney could recover damages in full.  In other words, damages to compensate her for her condition as at the date of trial without undertaking a comparison of those needs in the ‘but for’ scenario.

Unsurprisingly the defendant appealed to the Court of Appeal. The Court of Appeal ruled in the defendant's favour by declaring that the correct approach in law, in a case involving a claimant with pre-existing injuries, is to compare a claimant's needs after the injury for which the claim is being made with his needs before he was injured and then to make a valuation of the difference between the two.  By using judicial shorthand, the Court of Appeal described this approach as assessing whether the needs before and after the negligently caused injury were quantitatively or qualitatively different.  If the needs were considered quantitatively different (in other words, more of the same type) then the defendant is only liable for the additional needs flowing from their negligent act.  If the needs are qualitatively different (a different type of need) then a claimant is entitled to recover the cost of meeting those needs.  Although at first glance this test sounds easy to apply, it is fraught with difficulties and it is by no means clear as to how this test will be applied in future cases.

Following the Court of Appeal’s decision there was further dispute between the parties as to the correct terms of the order, and how Mr Justice Foskett should go about assessing damages.  By Mr Justice Foskett's own admission it was only during oral submissions that he could finally see what was being said by the defendant.  Essentially that the correct approach in law is to undertake a comparison between what is reasonably required in the post negligence scenario and what was reasonably required in the pre-negligence scenario both being objectively assessed.  The position taken by the defendant was that in all relevant instances during his initial judgment Mr Justice Foskett did not make an objective assessment of Mrs Reaney’s reasonable needs in her pre-negligence position.  Instead, he focused on what she would have received largely by way of local authority support which may have been less than her objectively assessed needs.

Mr Justice Foskett was unable to complete the quantification of Mrs Reaney’s case because, in his view, the parties needed to provide him with submissions by reference to the evidence given at trial on what the objectively assessed reasonable needs of the claimant were in the pre-negligence situation.  Unfortunately, for Mrs Reaney, the litigation did not come to an end and the uncertainty surrounding the extent of recoverability of damages for her future needs remained.

So what can we learn from the Reaney decisions?

1. When conducting a case where the claimant has a pre-existing injury the correct approach is to objectively assess the claimant’s needs post negligence and compare that assessment to what was reasonably required in the pre-negligence scenario.  While undertaking this assessment, reference to who would have provided, or funded, the care in the pre-negligence scenario is irrelevant.
2. Once the respective objective assessments have taken place an evaluation of whether the needs in the post negligence scenario are quantitatively or qualitatively different is required.  The exact meaning of these phrases remain uncertain.  It is likely that future litigation will elaborate as to what is considered ‘qualitatively different’.
3. The steps identified above relate to causation of injury.  Assuming the case is one where the needs are quantitatively different, or in other words more of the same, then the parties proceed to embark upon the formula agreed in the Reaney case:  This states that the damages payable for all of the claimant’s present needs (£z) are first assessed, and from this figure the damages payable for the claimant’s needs in the pre-existing situation (£x) are deducted.  So the damages payable are calculated by £z - £x.
4. Only when the causation assessment has been completed can credit be considered.  If provision to meet the needs in the pre-negligence scenario were likely to have been paid by a local authority, or a party other than the claimant, then is it appropriate to consider whether credit should be given when assessing the level of damages that should be paid by the defendant.  In this sense the decision in the case of Sklair remains good law and an adjustment may be made to the £x figure.

What emerges from the latest judgment in the Reaney case is that cases involving a pre-existing injury require a three stage test: an objective assessment of the pre and post negligent needs, followed by identification of whether those needs are quantitatively or qualitatively different.  These steps deal with causation of injury.  Once causation is established consideration should then be given to the extent of any credit that needs to be given for the cost of meeting the claimant’s pre-existing needs.  Only then should the method of funding those pre-negligence needs be considered as described in the case of Sklair.  This is a quantum issue and must not be merged and confused with issues of causation.

Although the latest sequel of Reaney is unsatisfactory for Mrs Reaney, a claimant of short life expectancy and high level of needs, the piecemeal approach to the resolution of the issues in dispute is enlightening practitioners how best to approach this complex, but common, type a case in practice.