In clinical negligence and personal injury claims, the claimant may have a pre-existing condition, which means they need care in any event. In such cases, experts may have to go into significant detail about the claimant’s needs but for the negligence, which can be a challenging task.
In this article, Francesca Bugg explains why this is so important to solicitors when calculating damages.
A look at the case law: Sklair v Haycock (2009) EWHC 3328
Before his accident, the claimant, Mr Sklair, had Aspergers and obsessive compulsive disorder (OCD). Despite being unable to work, he lived a fairly independent life and would travel to London on his own and see friends. His whole adult life had been spent with his father, who provided him with basic needs such as food and laundry.
Mr Sklair was 46 when he was involved in a road traffic accident. He suffered a spinal cord injury that left him with reduced mobility and dexterity. It also impacted his psychological state. Mr Sklair needed 24-hour care, which his father could not provide. The court found Mr Sklair was unable to live at home as before, and 24/7 professional care in suitable accommodation was required.
Mr Sklair argued that he was entitled to recover the full cost of a 24/7 commercial care package with no deductions for the notional cost of his pre-existing care needs.
The defendant argued that Mr Sklair was only entitled to the cost of an additional five hours of care per day caused by the negligent injury.
The judge found for Mr Sklair, and said he could recover the cost of his care needs in full.
Reaney v University Hospital of North Staffordshire NHS Trust & Anr [2015] EWCA Civ 1119
Mrs Reaney developed a condition that caused her to become paralysed below the mid-thoracic level. While hospitalised for this condition, she developed several grade 4 pressure sores, osteomyelitis, contractures and hip dislocation.
Two issues arose in the case:
- To what extent did the pressure sores and the other injuries worsen her condition?
- What damages should be paid as a consequence of any worsening, particularly in respect of care?
The judge stated that the negligence had made Mrs Reaney’s position “materially and significantly worse than it would have been but for that negligence”. It was found that, but for the pressure sores, there would have been no need for more than seven hours of care per week until the age of 70. However, as a result of her pressure sores, she required 24 hours of care per day. It was decided that Mrs Reaney should be awarded the full cost of her care.
The defendant hospital trust successfully appealed the decision. The Court of Appeal considered the correct approach was to compare a claimant’s needs before and after the injury and calculate the difference between them. Where negligence worsens a pre-existing condition, a claimant is only entitled to recover damages for the extent to which the pre-existing condition has been worsened by the negligence.
The trust’s liability was therefore limited to the additional care needed that was directly connected to their negligence.
The key issue to decide is whether the care needs are qualitatively or quantitatively different. The parties agreed that the extent of the trust’s liability turned on whether or not Mrs Reaney’s current needs were “substantially of the same kind as her pre-existing needs” or whether they were “qualitatively different from her pre-existing needs”.
The court considered that Sklair had been correctly decided, as in that case, the claimant’s needs were qualitatively different. Mrs Reaney’s care needs had not been analysed in this manner at first instance, so the case was sent back for assessment.
Conclusion
When instructed in a case where there are pre-existing care needs or would have been care needs but for the injury, there are two key points of analysis:
- Whether losses are ‘qualitatively different,’ ie different in kind compared to the pre-existing condition, or whether they are ‘quantitatively different’, ie more of the same. This is crucial in assessing the appropriate level of compensation for the claimant.
- An analysis of the difference between the extent of the needs if they are quantitative rather than qualitative in nature.
In arguments where it is ‘more of the same’, the liability for care will be proportioned between negligent and non-negligent causes. Where the care needs caused by the negligence can be said to be different in kind, the defendants will be liable for the full cost of the care package.
In practice, judges have discretion in determining the line between qualitative or quantitative difference, and this will not always be a clear-cut decision.
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