ASSESSING DAMAGES WHEN THE CLAIMANT WAS ALREADY SERIOUSLY INCAPACITATED: COURT OF APPEAL DECISION

In Reaney -v- University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 1119 the Court of Appeal considered the appropriate approach to the award of damages when injuries are caused to a claimant who, prior to the defendant’s negligence, was already seriously disabled.

  1. “At para 70 of his judgment in the present case, Foskett J said that, if a tortfeasor makes the victim’s current damaged condition worse, “then he (the tortfeasor) must make full compensation for that worsened condition”. If by that the judge meant that the tortfeasor must compensate for the condition in which the victim finds herself, he was wrong to do so. He must compensate for her condition only to the extent that it has been worsened by the negligence.”

THE CASE

The claimant, aged 68, was paralysed below the mid-thoracic level. This injury was not due to any negligence on the part of the defendant. Whilst hospitalised she suffered pressure sores that led to permanent damage.  This led to increased care needs.

KEY POINTS

  • In a case where the claimant was disabled prior to the defendant’s negligence act the task of the court is to assess the additional needs caused by the defendant’s negligence.
  • It was wrong to attribute the entirety of the claimant’s care needs to the defendant’s negligence in a case where she had significant care needs which pre-dated the negligence

THE DECISION OF THE JUDGE AT FIRST INSTANCE

At first instance the judge found that in the absence of the negligent treatment “Mrs Reaney would have been able to spend her waking hours out of bed in a standard wheelchair which she would have been able to self-propel. She could have undertaken a few basic household tasks. She would have been able to get out and about, doubtless with family support and supervision. She would inevitably have been doubly incontinent, but her bowel management would have been better than it now is and she would not have required a urethral catheter which she now requires.”

THE JUDGE’S FINDING ON CARE

The judge found that the claimant’s care needs had been significantly increased. Consequently the judge awarded damages on the basis of all her future  care needs.

THE FINDINGS OF THE COURT OF APPEAL

The Court of Appeal accepted the defendant’s main argument that the damages should be assessed on the basis of the extent to which the claimant’s care needs were increased by the negligence.

    1. in line with the approach set out in Kemp & Kemp (136 Release), Chapter 3, Chapter 13-003:
“It sometimes occurs that the Claimant who is injured had a pre-existing injury or disability which means that he was not capable of independent existence in the first place, and the effect of the injury for which a claim is made has been to increase or enhance the Claimant’s need for care. What is the correct approach in law? In principle one would have thought that the correct approach would be to compare the Claimant’s needs after the injury for which the claim is being made with his needs before he was injured, and to make a valuation of the difference between the two. Suppose for example, prior to the index injury, the Claimant needed 4 hours of assistance a day, but since the injury, he needs 12 hours of care a day. Instinctively, the correct approach is to say that the effect of the accident has been to increase the Claimant’s needs by 8 hours a day, and the cost of the additional 8 hours a day represents the appropriate valuation of the injury which the Claimant has sustained.”
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: