THE JUDGE, THE EXPERT, CAUSATION AND DAMAGES: THE APPROPRIATE APPROACH WHEN THE DEFENDANT HAS MADE A BAD SITUATION WORSE

The decision of Foskett J in Reaney -v- University Hospital of North Staffordshire NHS Trust [2014] EWHC 2016 (QB) contains important observations on the role of the judge and the expert in assessing damages for care. It also contains a careful consideration of the principles that apply when a defendant has made someone with serious symptoms worse. Whilst it is obviously essential reading for personal injury and clinical negligence lawyers some of the observations in relation to assessing damages when there is a pre-existing problem and the role of judge are of greater significance.

THE ISSUES

The claimant suffered from transverse myelitis  a condition which rendered her paralysed below the mid-thoracic level, she had no feeling below that level and no control over her bladder or bowels.  During a stay in hospital she developed a number of deep pressure sores with consequent infection of bone marrow; contractures of her legs and hip dislocation.  Because of the myelitis she was always destined to be in a wheelchair. The issue was the extent to which the pressure sores and their sequelae had made the situation worse.

THE JUDGES FINDINGS ON THE FACTS

The judge assessed the expert evidence and concluded that, if the pressure sores had not occurred, the claimant would have had a much better quality of life.  The complications arising from the pressure sores gave rise to the need for 24 hours care by two carers.

THE DEFENDANT’S SUBMISSIONS ON CARE: THERE IS NO LOSS

The defendant argued that there was no obligation to pay damages for care. The claimant had a pre-existing disability which could have required care in any event.

The submissions of law

1. Mr Feeny takes what would appear at first sight to be a fundamental point in answer to the Claimant’s claim for compensation by asserting that the Defendants cannot be liable to compensate for any loss that had occurred before their breach (or breaches) of duty or which would have occurred in any event in the absence of their own breach (or breaches) of duty. Basing himself on the decision of the Court of Appeal in Performance Cars Limited v Abraham [1962] 1QB 33 (referred to without disapproval by the House of Lords in Baker v Willoughby, below, and followed in Steel v Joy and another[2004] 1 WLR 3002), he submitted that a defendant who causes a claimant loss by reason of a tortious breach of duty cannot be liable for a loss that had already occurred prior to that breach of duty or would have occurred in any event and irrespective of that breach of duty. He says that this is an illustration of the basic principle of liability in tort that as general rule a wrongdoer must take a victim as he finds him (which may be to his advantage or disadvantage): see, e.g., per Lord Reid in Baker v Willoughby [1970] AC 467, at 493, the facts of which are well-known, where he said this, having referred to a number of previous cases including Hogan v. Bentinck West Hartley Collieries (Owners) Ltd [1949] 1 AER 588, Rothwell v. Caverswall Stone Co Ltd. [1944] 2 AER 350 and Performance Cars (above):

“These cases exemplify the general rule that a wrongdoer must take the plaintiff (or his property) as he finds him: that may be to his advantage or disadvantage. In the present case the robber is not responsible or liable for the damage caused by the respondent: he would only have to pay for additional loss to the appellant by reason of his now having an artificial limb instead of a stiff leg.”

1. Mr Feeny submits that the Defendants are liable to compensate the Claimant only for any losses attributable to the additional disability they have caused over and above her pre-existing disability and that anything attributable to the pre-existing disability is not something for which they are liable to provide her with compensation: such pre-existing disability was not, he submits, caused by the Defendants and thus is not something for which they are liable to provide compensation. He submits that the Claimant’s approach in this case involves the proposition that because she can identify a defendant with funds to pay for what she contends she reasonably requires, that defendant must pay for her reasonable requirements even though they existed before any breach of duty on the part of that defendant. On the facts of the case, he suggests the Claimant’s schedule “in almost its entirety could reasonably have been presented as a Schedule for T7 paraplegia” and that no material additional need arising from the additional disability caused by the Defendants has been established with the result that no compensation falls to be provided. Whilst he was not, of course, contending that the Claimant was entitled to no compensation (conceding, for example, an award for damages for pain, suffering and loss of amenities of life of £75,000), it is plain that any award consistent with this approach would be relatively small in the scale of things and would go nowhere near meeting her reasonable needs as they presently stand.

DISCUSSION OF THE RELEVANT PRINCIPLES WHERE THERE IS A PRE-EXISTING INJURY

1. Does the law dictate the conclusion for which the Defendants contend in the Claimant’s case? For my part, whilst my decision relates purely to this case and to no other, I do not think that it does. I will first review briefly the authorities to which my attention has been drawn and the competing arguments.
2. Principles relating to the way damages are awarded and calculated have been established through many cases in differing contexts over many years, but it must always be borne in mind that the principles were generally enunciated in the context of the case in question. If it were not for the fact that Performance Cars was not disapproved in Baker v Willoughby (which was a personal injuries case) and was expressly followed in Steel v Joy (which was also a personal injuries case), I would have said that it is, frankly, odd that a case concerning the re-spraying of a Rolls Royce, decided over 50 years ago, should have anything to do with a claim brought by a T7 paraplegic for negligently caused pressure sores and their consequences – or indeed any analogous claim in the personal injuries sphere.
3. However, be that as it may, there is one feature of the sequence of cases which, for this purpose, can be said to have commenced with Performance Cars that, in the first instance, distinguishes those cases (including Rahman v Arearose Ltd [2001] QB 351, considered in Steel v Joy) from the present case at least for practical purposes. Whether it distinguishes it materially from the legal point of viewis a matter for consideration. The distinguishing feature is that in all those cases (including Baker v Willoughby) both acts that gave rise to the damage in respect of which claims were made by the claimant were wrongful in the sense of either being tortious or the equivalent of tortious: there were, therefore, potential compensators available to be pursued for the full loss and, potentially at any rate, opportunities for apportionment of the losses between those responsible. However, in Carslogie Steam Ship Company Limited v Royal Norwegian Government [1952] AC 292, which was followed by the Court of Appeal in Performance Cars, there was an initial wrongful act (a collision between vessel A and vessel B that was the fault of vessel B) the consequences of which were, in effect, obliterated by a subsequent natural event (heavy weather) that rendered vessel A unseaworthy. The loss of 10 days profit by vessel A by way of hire charges that were claimed to be attributable to the damage caused by vessel B out of the total of 30 days spent effecting repairs was held not to be recoverable from the owners of vessel B because vessel A “was not a profit-earning machine” during this period because of the heavy weather damage, not because of the previously inflicted damage. In that case there was no opportunity for apportionment because the heavy weather damage was held to have been the cause of the lack of seaworthiness of vessel A to which the damage caused by vessel B made no contribution.
4. In the present case, of course, the wrongful acts of the Defendants made their impact upon the already-disabled Claimant and she was not in a position to seek compensation from any party for that pre-existing disability. Mr Feeny would argue that she is, therefore, in no different position from a claimant who is pursuing two tortfeasors one of whom is insolvent and he relies upon the following passage in the judgment of Dyson LJ, as he then was, in Steel v Joy:

“In our judgment, Performance Cars is still good law …. As a matter of logic and common sense, it is clearly correct. We do not consider that it produces an unjust result. The claimant is entitled to recover damages from the first defendant for the losses inflicted by him; and from the second defendant for any additional losses inflicted by him. It is true that, if the first defendant is not before the court or is insolvent, the claimant will not be fully compensated for all the losses that he has suffered as a result of the two accidents. But that is not a reason for making each defendant liable for the total loss. In Baker, the issue was whether the tortfeasor who had caused the first injury was liable for its consequences after they had arguably become merged in the consequences of the second injury. In the present case, the question is whether the second tortfeasor is responsible for the consequences of the first injury. To that question, the answer can only be: no. It is true that, but for the first accident, the second accident would have caused the same damage as the first accident. But that is irrelevant. Since the claimant had already suffered that damage, the second defendant did not cause it. This is not a case of concurrent tortfeasors.”

1. That case involved a claim by the claimant for losses arising from two separate accidents (just over 2 years apart) each of which had some effect upon a congenital (and thus pre-existing) spinal stenosis. As a result of the first accident his already existing problems were accelerated by a period of 7-10 years and as a result of the second accident there was a 3-6 months’ aggravation of his problems. However, it did not affect his existing medical condition which existed by virtue of his pre-existing condition and the effects of the first accident. The second accident did not affect the long-term prognosis although if the first accident had not occurred it would have had the same effect as the first accident.
2. It is, perhaps, to be noted that the Court of Appeal saw Baker v Willoughby as an exception to the “but for” rule as to causation because of the injustice that would have arisen if the defendant’s argument were accepted, namely, that he had no liability in respect of the period after the plaintiff’s leg had been amputated with the result that “the plaintiff would fall between two defendants, and not be entitled to full compensation.” At [67] Dyson LJ referred to what Lord Pearson had said on that issue in Baker at p 495.
3. It is clear from these cases that where there are two distinct tortious acts causing distinct injuries, those responsible are not to be seen as concurrent (or joint) tortfeasors and thus responsible for thewhole damage. Where the distinct tortious acts cause the same damage, the position may, of course, be different: Clerk & Lindsell on Torts, 20th ed., para. 4-02.
4. As I understood Miss Hallissey’s argument, she does not challenge the correctness of these decisions: indeed they are plainly binding on me. Her argument is that, as a matter of fact, the Defendants’ negligent failure to prevent the pressure sores and their consequences has caused the need for the care claim now advanced (and its consequences) and that it is a distinct claim that can be maintained irrespective of any pre-existing disability. The mere fact that at some stage the Claimant would have required similar care irrespective of the pressure sores and their consequences is of no relevance, she argues. She derives this position from the proposition that the general object of an award of damages is to compensate the claimant for the losses, pecuniary and non-pecuniary, sustained as a result of the defendant’s tort. She referred to the words of Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, at 39, where he said that the court should award “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”. Her argument is that this is a case where, taking the Claimant as the Defendants found her, the Defendants have added significantly to the effects of her pre-existing disability such that certain costs associated with dealing with those effects are reasonably required.
5. There can, in my judgment, be no doubt that a defendant cannot be held to be liable for loss or damage that it did not cause or to which it made no material contribution. Where, however, a defendant has been shown to have done one or the other of these things in relation to an injury sustained by a claimant, then that claimant is entitled to full compensation in the manner encapsulated in the words of Lord Blackburn. The question of how aspects of that compensation fall to be evaluated in financial terms can present difficulties where, as in this case, one part of the claimant’s overall disability was not caused or contributed to by the only wrongdoer available as a compensator.
6. I will return to the question of the evaluation of the claim in the present case (and the relevance, if any, of the case of Sklair v Haycock [2009] EWHC 3328 QB) after I have summarised what appear to me to be the essential factual conclusions on the Claimant’s pre-existing and “post-pressure sore” needs.

THE JUDGE’S CONCLUSIONS

The judge made general findings in relation to the care needs that may have arisen had the claimant not been injured due to the defendant’s negligence and concluded.

1. I should say at the outset that whilst I accept the general thrust of Mr Feeny’s submissions that in law a defendant may only be liable to compensate a claimant for the damage it has caused him or to which it has materially contributed, I see this case as a reflection of the principle that a tortfeasor must take his victim as he finds him and if that involves making the victim’s current damaged condition worse, then he (the tortfeasor) must make full compensation for that worsened condition. The principle is neatly summed up in footnote 94 to paragraph 2-31 in Clerk & Lindsell on Torts, 20th Ed., which reminds the reader that “the fact that the defendant’s breach of duty has worsened an existing condition may lead to a higher assessment of the loss, since the consequences of the impairment may be greater” and continues to say “[thus], it is much worse to be totally deaf than half deaf, and the additional hearing loss (from half to totally deaf) causes greater damage than the initial hearing loss (from full hearing to half deaf).” The footnote refers to Paris v Stepney Borough Council [1951] AC 367 from which is derived the proposition that “loss of an eye is significantly worse for a one-eyed man than a man with full eyesight.” It is not difficult to build up a list of similar comparisons between the “but for scenario” and the “as it exists scenario” in the present case.
2. In my judgment, on the evidence, the Defendants’ negligence has made the Claimant’s position materially and significantly worse than it would have been but for that negligence. She would not have required the significant care package (and the accommodation consequent upon it) that she now requires but for the negligence. Had I had any doubts in this case about the issue of causation in the “but for” sense, I would have been inclined to find that the Defendants had “materially contributed” to the condition that has led to the need for the 24/7 care of the nature discussed earlier in this judgment and that the lack of any joint or concurrent tortfeasor as a potential direct compensator (and/or from whom a contribution might be sought by the Defendants) is no answer to a full claim against the Defendants: cf. Bailey v Ministry of Defence [2007] EWHC 2913 (QB) as upheld in the Court of Appeal: [2009] 1 WLR 1052. However, as I have indicated, I consider that causation is established by what might be termed the more conventional route.
3. I remain unclear about the extent to which Mr Feeny asserts that any credit should be given against the value of the claim assessed on the basis I have indicated for the notional cost of meeting the Claimant’s needs in the “but for scenario”, but for present purposes all I believe I need to say is that I respectfully agree with the sensible, compassionate and principled approach to this kind of issue taken by Edwards-Stuart J in Sklair (see paragraph 67 above). If there remains any dispute about any matter of deduction it should, in my judgment, be resolved by reference to the way it was resolved in that case.”

THE COURT IS THE ARBITER OF WHAT “REASONABLY MAY BE REQUIRED”

The interesting aspect of the judgment is that there is a discussion in relation to the quality of the care needed.  Foskett J made it clear that the issue of what is “reasonably required” is a matter for the judge.

1. I think I should comment briefly on one feature of Mr Gardner’s evidence because Mr Feeny places some reliance upon it in support of certain of his submissions. Doubtless because of his extensive experience in dealing with paraplegics in many situations, in some of which he will be asked to prepare a report for medico-legal purposes and in others where he will be asked to recommend to a local authority what may be required for someone not in a position to claim compensation, Mr Gardner effectively said that what might be a reasonable and realistic claim in one context may not be so in the other. I have little doubt that that is correct in practice, particularly in times when local authority provision involves so much emphasis on the allocation of scarce resources: cf. R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33. However, much as the practical distinction needs to be recognised, I do not think it truly informs the role of the court in assessing what may be claimed. The example relied upon by Mr Feeny for the purposes of his submissions was the view expressed by Mr Gardner that “in medico-legal terms” it would have been reasonable to claim on the Claimant’s behalf for a “roll-in vehicle” in the “but for scenario”, but “in clinical terms” it was not reasonably justified and he did not think that she would have been awarded such a vehicle. He had also said something similar in relation to the care package. As I have said, it is tolerably clear that these distinctions can be made for practical purposes and helpful to know how an expert is approaching the issue, but I do not consider that much, if any, weight can be attached to them other than to say that it serves to confirm that it is ultimately for the court (assisted, but not dictated to, by the opinions of experienced experts) that drives the appropriate conclusion about what may “reasonably be required” in a particular claimant’s case. Mr Feeny appeared to suggest that once Mr Gardner had said that he would have supported a compensation claim for something in the “but for scenario” had it been possible to make a compensation claim, that dictates the court’s decision on “the legal need”. With respect, I do not agree.”

This makes it clear that, ultimately, what is reasonably required is a matter for the trial judge, “assisted but not dictated to” by the experts.

THE JUDGMENT IN SKLAIR

Anyone interested in seeing how a judge approaches these issues in a “compassionate and principled” way should read the judgement in Sklair -v- Haycock [2009] EWHC 3328 QB.