The Basic Principle
One of the basic principles of our compensation system is that where someone is injured due to the negligence of another, they are entitled to recover compensation to put them back into the position they would have been in “but for” the negligence, so far as money ever can. Two individuals might react in different ways despite suffering the same injury. Person A might make a quick and uneventful recovery (meaning the value of any claim will be limited) whereas person B, despite suffering the exact same injury, might have a more severe reaction and take longer to recover or require additional help/treatment (meaning a potentially higher value claim). Defenders/Insurers accept this principle (known as the “Egg-Shell Plaintiff” rule) and that they must “take their victim as they find them”. Therefore, when someone with a pre-existing vulnerability is injured, irrespective of the fact that they might suffer a particularly bad reaction, and the value of any award might be higher than had the injury occurred to someone without such a vulnerability, it is understood that the injured individual is entitled to be compensated in full.
The Case of Reaney – A Potential Exception?
The English case of Reaney v University Hospital of North Staffordshire NHS Trust sparked debate amongst the legal profession. Mrs. Reaney was admitted to the hospital in 2008 with an illness that caused her to become permanently paralyzed. This was not caused by any negligence, and it was agreed that she would have required some care for this. While in hospital, she then developed several pressure sores that significantly worsened her condition. The Trust accepted that they had been negligent in failing to prevent the pressure sores, and it was agreed that, due to the resulting sores, she had far greater future care needs than she would have had otherwise. The question for the court was whether the defenders should compensate Mrs. Reaney for her total care needs, or simply the additional care required due to the resulting pressure sores. The Court held that the Trust should pay for all Mrs. Reaney’s future care. This caused great concern to defenders/insurers as it appeared to extend the “Egg-Shell Plaintiff” principle from compensating for a bad reaction, triggered by a pre-existing vulnerability, to compensating for a pre-existing condition (the two being very distinct from one another). If someone required help/treatment pre-injury, then why should that defender have to pay for that assistance? Up until this initial decision, there was little doubt that you could only claim for any additional damage caused by the negligence, and any costs in relation to a pre-existing condition had to be discounted.
The Appeal
The Court of Appeal in England made it clear that compensation should only be awarded – to the extent that condition has been worsened by the negligence. The Trust had not injured a completely healthy person, but rather a woman who was already paraplegic and who already had considerable care needs. In an important, and correct concession on the part of the pursuer, it was agreed that if the negligence had caused Mrs. Reaney to require additional care of substantially the same kind as would have been required in any event (i.e. if she now required more of the same type of care that would have been required without the additional injury), then it is only the additional care that must be compensated for by the defender (this suggests that the Claimant’s legal team understood that the comments of the judge at First Instance were unlikely to be followed by the Appeal Court).
On the other hand, parties agreed that if the needs caused by the negligence were “qualitatively different” from her pre-existing needs, then those needs were caused in their entirety by the negligence (so if the type of care required had changed as a result of the negligence then compensation could be sought in full).The Claimant’s team, in trying to have the Appeal refused, argued that the judge at first instance felt that the care required was, in fact, “qualitatively different” as a result of the pressure sores and he was therefore entitled/correct to award full compensation. The Court of Appeal rejected this as there was nothing to suggest that the judge had approached the case in that way – there was, for example, no finding that Mrs. Reaney now required specialist caregivers with skills not possessed by caregivers of the kind who would have been able to meet her pre-existing needs. The finding that all of Mrs. Reaney’s care needs were caused by the negligence could not, therefore, stand.
Any Lessons?
What is potentially helpful to pursuers is the Court of Appeal’s acceptance of the principle that where the needs caused by the negligence were qualitatively different from the pre-existing needs, then those needs were caused in their entirety by the negligence. If it can be shown that the type of care has changed, then all of the care can be claimed for, notwithstanding the fact some care would have been required anyway. The focus should therefore be on the ways in which the type of care has changed (See the decision of Sklair v Haycock [2009] EWHC 3328 which was decided prior to Reaney but was distinguished. In Sklair, the court allowed full recovery of the care needs following negligence that had worsened the claimant’s condition because the nature of the care/assistance required had significantly changed. It was not “more of the same” but rather care of a different nature. The decision in Sklair was referred to in Reaney and this goes part of way to explain the confusion (together with an understandable sense of sympathy to the position in which Mrs Reaney found herself). The Appeal Court in Reaney stated that the decision in Sklair was correct, on the basis that the needs following the accident in that case were “qualitatively different”.
This decision is relevant to anyone seeking compensation with a pre-existing injury no matter the cause – whether medical negligence or through a road traffic or work accident.