Injury to an already injured person—more than just a ‘top-up’ exercise

Injury to an already injured person—more than just a ‘top-up’ exercise

The approach taken in the High Court to the awarding of damages in the case of Reaney v University Hospital of North Staffordshire NHS Trust explores the issue surrounding injuries caused to an individual who is already injured. Ian Christian, a partner specialising in clinical negligence at Irwin Mitchell, discusses the details of this case.

Original news

Reaney v University Hospital of North Staffordshire NHS Trust and another [2014] EWHC 3016 (QB), [2014] All ER (D) 153 (Sep)

The defendants admitted the negligent exacerbation of the claimant’s T7 paraplegia by deep (grade 4) pressure sores with the consequent infection of the bone marrow, abnormal shortening of the muscle tissue of her legs and a hip dislocation. The Queen’s Bench Division considered the extent to which the claimant’s condition had been made worse and what damages should be paid. Applying the principle that a tortfeasor had to take his victim as he found him and make full compensation for their worsened condition, the court found the defendants’ negligence had made the claimant’s position materially and significantly worse than it would have been but for that negligence.

What issues did this case raise?

The focus of the argument in this case is how the court should approach the award of damages when there is an underlying injury, that was non-negligently caused, and the subsequent negligent injury dramatically increases the claimant’s needs.

This case was complicated by the fact that the claimant had a very serious spinal injury which preceded the negligence and so the claimant started from a position of already needing and receiving care and assistance. The court had to determine what level of compensation was appropriate taking into account what the claimant had been receiving and what she now actually required.

The claimant took a very practical argument based on the facts and said that the case should be approached on the basis of what the claimant was actually receiving by way of care and support prior to the negligence. Having taken that as the starting point the judge was invited to take the claimant from that position all the way to supporting her with the significant amount of care that she requires following the negligence.

The defendants sought to say that that wasn’t the right approach and that the defendants should only ‘top-up’ the care that the claimant would otherwise have needed prior to that negligence. The defendants’ argument was that because of the paraplegia the claimant had, that everyone accepted was not negligently caused, she was always going to be someone who had significant care needs but those needs should not rest at the door of these defendants. Therefore the defendants invited the court to assess the claimant’s needs as a whole, give credit for the care that was being provided, take account of the care that she needed but was not being provided and thereafter only compensate the claimant for the additional care that arose because of the pressure sores.

Those fundamental arguments show how stark the differences were between the claimant’s and the defendants’ positions. The difficult issue for the judge was that there was a significant element of care that the claimant needed prior to the negligence but that care was not being met. Once the negligence occurred and the claimant’s care needs increased, how did the judge fairly compensate the claimant to address her needs?

While the claimant was paraplegic before the pressure sores developed, she was only able to receive seven hours of care from the local authority and on top of that she received gratuitous care from her friends and family. After the negligence, the judge accepted that the claimant now needed 24-hour care, seven days a week, provided by two carers.

The defendants said that it wasn’t fair that they should pay for this full care package because they were being asked to compensate for the underlying paraplegia and not simply for the pressure sores and the problems developing from there.

When this was argued out the judge took a very practical view on the case. He said that he first of all needed to establish an objective ‘but for’ position and decide what her needs were ignoring the negligence. He then looked at the factual position of what she was actually receiving—ie the seven hours and the family support—and thereafter, having heard the legal arguments from the defendants and the claimant, determine the appropriate level of compensation to meet the claimant’s needs.

The defendants were sympathetic to the claimant and the fact that she was paraplegic but maintained they shouldn’t be responsible for the costs associated with the care attached to that disability.

The claimant’s position was that it was a matter of fact the claimant was only able to receive seven hours of care plus the family support previously and now, as a consequence of the defendants’ negligence, she needed such an extreme amount of care and support and that the defendants should pay for that as a consequence of the negligence.

The judge found in the claimant’s favour and said that was the correct approach to take. It wasn’t up to the defendants to ‘top-up’ what might otherwise or should have been in place as a consequence of the underlying injury. The consequence of the defendants’ negligence was that by injuring an already injured party, the defendants were responsible for the costs associated with the care package (and other associated expenses) that the claimant required.

How helpful is this judgment in clarifying the correct legal approach in cases such as these?

It’s very helpful. It demonstrates that it’s not a straight line exercise of simply looking at the end position and subtracting what would be seen to be the additional damage and then providing compensation on that basis. It shows that both parties, claimant and defendant, need to objectively assess the ‘but for’ position, but when doing so look at the factual circumstances that present for the injured party and then work out the appropriate compensation.

It helpfully endorses what has been longstanding law by putting the claimant back into the position that they would otherwise have been taking into account Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 which was quoted by the judge.

What does all this mean for lawyers and their clients?

I think it shows that where an injury already exists and there’s a second injury to an injured party, neither claimants nor defendants can assume that there will be a simple ‘topping-up’ exercise. To injure someone who is already injured is more serious than to injure someone who starts from an uninjured position.

The judge quoted the fact that it has long been established that if a person loses one eye, that is bad, but if they then go on to lose a second eye and they are rendered completely blind then the consequences are devastating. Therefore, in cases such as these the detail of the claimant’s pre-existing factual circumstances needs to be considered acutely.

How does all this fit in with other developments in this area?

It demonstrates that even where liability has already been admitted the claimant still faces a difficult job in pursuing cases through the litigation process and the litigation pressures that unfold on claimants are still significant. It’s reassuring that Mr Justice Foskett was robust enough to consider the arguments put forward on behalf of both parties and establish that in order for justice to be done the claimant required a level of compensation that he directed with his finding.

I think that litigation remains a difficult process for both sides and both sides need to ensure that all is being done to present cases sensibly and efficiently. The judgment here goes some way towards providing significant guidance on dealing with cases where there is an injury on top of an existing injury and the judge’s obiter comments regarding material contribution demonstrate this to be a well-established principle that both parties should take into account when assessing causation of damage.

Interviewed by Fran Benson.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published by Lexis®PSL Personal InjuryClick here for a free trial of Lexis®PSL.

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