PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust  EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and how the judge should approach the hearing that had been remitted.
“the position is much less clear than I would have thought it ought to have been. The landscape I am required or permitted to survey is unclear and I do need to have the fullest picture before proceeding further. I am, therefore, taking my own pragmatic course at this stage before considering the issues raised finally.”
- The Court of Appeal had allowed the defendant’s decision about the basis of an award of damages and remitted matters back to the trial judge.
- The Court of Appeal stated that damages were to be awarded on the basis of the claimant’s additional needs caused by the defendant’s negligence.
- However there was no agreement about the scope of the exercise that the trial judge now had to undertake, including whether he could hear new evidence or examine the transcript.
- There had been some attempt at clarification by the Court of Appeal, however the judge made directions for submissions to be made in relation to the issue of damages before he determined the precise approach he should take.
The judge gave judgment for the claimant for damages. This was appealed by the defendant to the Court of Appeal. The claimant had pre-existing medical difficulties and the issue related to the assessment of damages for the additional needs caused by the defendant’s negligence. The matter was remitted to the judge for further consideration.
INABILITY TO AGREE WHAT THE COURT OF APPEAL DECIDED
This may be the first judgment to refer to an email from the Master of Rolls.
For reasons I will have to develop below, neither side was wholly happy that it understood the judgment of the Court of Appeal in its entirety or that it dealt with all the arguments addressed. Each addressed written requests for re-consideration by and/or guidance from the court. In those circumstances Counsel were unable to agree the terms of the order. I will have to refer to the eventual guidance on the terms of the order actually made, given by the Master of the Rolls in an e-mail sent on his behalf. Whilst the parties seem to be agreed on the literal interpretation of that guidance, neither seems wholly comfortable with its consequences and, as will appear (see paragraph 35 below), each arrives at vastly different conclusions as to quantification by purporting to follow it. This leaves me in the wholly unenviable and invidious position of addressing the question of whether the guidance was intended to be as restrictive in its impact as, on a literal interpretation, it appears to be before I can proceed to a task which, at face value, seemed a relatively straightforward exercise in the light of the judgment of the Court of Appeal as I have read it.
POST APPEAL ACTIVITY
The judgment is also unusual in that it sets out, in some detail, the flurry of activity after the Court of Appeal judgment.
If I may respectfully say so, it also seems plain to me, having read the judgment, that what the Court of Appeal was expecting me to do on the return of the case to me was to address each of the various heads of damage specified in the judgment at  (care, physiotherapy, accommodation, equipment, transport and holidays) and to determine in respect of each the additional needs in terms of its quantity compared with the Claimant’s pre-existing needs and to make an award of damages on that basis. In other words, I was to determine how much “more of the same” was needed in her present condition compared with her pre-existing position and to place a monetary value upon it. It is equally plain, in my view, that the Court of Appeal must have thought that the material existed to enable me to do so when the matter came back before me. The court referred to the “undoubted fact that [the Claimant’s] quality of life is now markedly worse than it would have been but for the negligence” and presumably anticipated that, approaching the issue correctly in accordance with its judgment, I would have been able readily to make the relevant assessment and award damages accordingly. If that was the view of the Court of Appeal, I would respectfully have shared it. According to the submissions of the parties, that is not so.
I will return to this below, but I do need to trace the history of events after the parties received the draft judgment from the Court of Appeal because it has affected the way the arguments before me have unfolded. The draft judgment was circulated on 27 October 2015 and its final paragraph invited “counsel to agree the terms of an order which give effect to this decision.” However, for the reasons already foreshadowed (see paragraph 6 above) in the short period between the receipt of the draft judgment and the handing down of the final judgment each party had made some representations to which I need to refer. Before doing so I should, perhaps, say that I have been told that the final form of the judgment was no different in substance from the draft judgment: the only changes were typographical or of no substantive consequence save that I infer, in the light of the representations to which I will refer below (see paragraph 13), that the final sentence of paragraph 26 of the judgment was added to that which had appeared in the draft.
The Appellants in the appeal (and thus the Defendants in the action) apparently alerted the Clerk to the Master of the Rolls by email to certain issues they had with the draft judgment and then submitted a document prepared by Mr Westcott and Mr Feeny entitled “Appellants’ Supplementary Submissions” dated 30 October 2015. That was the Friday before the final judgment was due to be handed down on Monday, 2 November 2015. I can only assume that the substance of what the Appellants wished to put forward had been reflected in the previous email because the Respondent to the appeal (the Claimant) also advanced a written submission dated 30 October 2015 which, in broad terms, addressed the issues raised in the Appellants’ Supplementary Submissions without answering that document directly. At all events, the position taken by each side at that time is tolerably clear from those two documents.
The Appellants were anxious about the following matters: (i) that certain concessions made during the hearing of the appeal and certain arguments addressed by Mr Westcott were not “accurately set out and/or dealt with in the judgment”; (ii) that paragraph 26 needed alteration to include the heads of claim in relation to accommodation, equipment, transport and holidays; and (iii) the terms in which the case should be remitted to me. As I have indicated (see paragraph 11 above), (ii) seems to have been acted upon prior to the final judgment being handed down.
As to (i), the Appellants’ written submission ran to 5 pages. In the first instance, the Appellants sought to challenge the view of the court that what was recorded in  of the judgment (see paragraph 3 above) was indeed “common ground” and asserted that what was recorded in  was not an accurate account of what was said on behalf of the Appellants. In particular, it was asserted that at no stage in the argument did Mr Westcott use or accept the phrase “qualitatively different”. Although other points were made in this connection by the Appellants, as I have indicated, nothing was changed in the final form of the judgment. The second aspect referred to under this part of the Appellants’ submissions related to the way in which, given the court’s overall conclusion, the relative needs (i.e. the Claimant’s present needs compared with her pre-existing needs) should be compared. What was said on the Appellants’ behalf was that this should be done on the basis of identifying the “objectively assessed needs” both pre- and post- the Defendants’ negligence. It was said by the Appellants that in relation to the pre-negligence needs I had focused on what support would actuallyhave been made available (largely, if not exclusively, through local authority support) and did not focus on what the Claimant’s “objectively assessed reasonable needs” were: those may have been different from what she had to “make do with” through the local authority. As I understand it, the Appellants accepted in the pre-appeal material it put before the Court of Appeal that “the evidence was available” by which this objective analysis could have been undertaken and it was referred to in Appendix 1 of the Skeleton Argument lodged in support of the appeal. Reference to that Appendix shows what was described as “Scenario B” which sets out the Appellants’ contentions on the basis of the evidence called at the trial before me of the difference between the objectively assessed reasonable needs of the Claimant pre- and post- the Defendants’ negligence. The words that introduce Scenario B are as follows:
“In the alternative, if the Court rejects the appellants’ case as to the necessity of proving actual expenditure but nonetheless accepts the appellants’ principal legal argument that they can only be liable for the consequences of such additional loss as they have caused, then the valuation of loss as set out in Scenario B below would reasonably apply.”
The case as to “proving actual expenditure” is a shorthand for the case advanced by the Defendants as Scenario A in the above Appendix (albeit now not pursued: see paragraph 36 below) that the Claimant was required to prove that “any additional loss is likely to be incurred.” This is the way the argument was summarised in paragraph 6 of the Counter-schedule:
“In respect of future loss, and in particular care, the Defendants will contend that the Claimant must prove that any additional loss is likely to be incurred. Specifically given that there is no claim for the first carer and no funds available to fund such a carer, the likelihood is that the Claimant will remain dependent on the Local Authority for her basic care needs. In the circumstances as it appears below, the Claimant will only suffer loss to the extent that she must pay additional charges to the Local Authority.”
As will become apparent, the Court of Appeal expressed no view on the case thus advanced but, of course, did accept the Appellants’ principal legal argument. However, it is clear that the Appellants were prepared to accept that the exercise they say I should have carried out could be carried out by reference to the evidence I received at the trial and indeed were prepared for the Court of Appeal to entertain submissions concerning this approach.
The written submissions made concerning the draft judgment also suggested that the Court of Appeal had not adjudicated on the Appellants’ argument that the correct exercise was to compare the “objectively assessed reasonable needs” of the Claimant pre- and post- the Defendants’ negligence. Those submissions also recorded that the court had intimated during the course of the argument that it was not minded to go into the issues raised by Appendix 1 to the Skeleton Argument (see paragraph 14 above).
Before turning to the order made by the Court of Appeal, I need to record the Claimant’s response to those foregoing points. As to (i), it was suggested that  of the draft judgment reflected the position as it developed during the course of the hearing before the Court of Appeal and that there was no need for any modification. It appears to have been accepted on the Claimant’s behalf that the court did not rule on the “objectively assessed” argument because the court had discouraged development of the argument. It was described on behalf of the Claimant as a “secondary issue” and that it would not be acceptable to rule upon it since it had not been addressed by the Claimant in oral argument. It is plain that Mr Moon contemplated that this is an issue that would be addressed by me if it arose. I say “if it arose” because his position at that stage was that it was still open to him, on the Claimant’s behalf, to argue before me that her needs were indeed “qualitatively different from her pre-existing care needs” and that, accordingly, if that contention could be sustained she should be awarded the full claim, doubtless much along the lines of the award I had made originally. The position he was maintaining at that stage was that it would be open to me to decide whether further evidence was necessary and, if so, what it should be. He asserted that if it became necessary for me to consider an “objective assessment” of the Claimant’s pre-existing needs, I would need to consider further evidence because there was “little evidence before the court below to enable it to quantify such an ‘objective assessment’.”
resisted by Mr Westcott on behalf of the Appellants. The Appellants’ Supplemental Submissions contended that the Claimant should not “have a second bite at the cherry by securing a fresh opportunity to evidence differential needs or costs”, that there was “no justification at this stage for permitting her to seek directions to rely upon further evidence or to advance a different factual case as to the differences between the nature of care she would have needed and the care she now needs” (my emphasis) and that the quantification of her loss should “be dealt with following written submissions confined to calculation of the cost of meeting her additional needs under the heads of claim … as properly identified pursuant to the principles established by the judgment of the Court of Appeal, on the basis of the evidence called at the trial and the findings of fact made by the judge.” (My emphasis.)
It is to be noted that at that stage the Appellants appeared to contemplate the possibility of the need to refer “to the evidence called at the trial” (as is plain from their willingness to engage in the issues raised in their Appendix 1: see paragraph 14 above) , but obviously only within the relatively narrow confines of the issue of quantification as identified. As will be clear from the foregoing, the Claimant’s position at that stage was that wider evidence than that ought to be permitted.
DID THE COURT OF APPEAL JUDGMENT MEAN NEW EVIDENCE COULD NOT BE CALLED
The parties were vastly apart on their valuations of the case following the Court of Appeal judgment. There was also an issue as to whether the claimant could call further evidence at this stage.
He came to the following conclusions.
(1) The Court of Appeal endorsed the approach to the evaluation of the Claimant’s damages as that set out in Kemp and Kemp, a passage to which the Appellants had drawn the court’s attention: see  of its judgment.
(2) In part of the argument before me, the damages payable by a defendant who was responsible for all the present needs of the Claimant were identified as £Z (leaving out damages for pain, suffering and loss of amenity) and the amount of damages that would have been payable by a defendant who was responsible for all her needs in the pre-existing situation as £X. It was asserted by the Defendants that the amount of damages payable by a defendant who caused the additional needs would be £Z – £X pounds = £Y. That is what the Defendants say they should pay to the Claimant. The Claimant agrees and Mr Moon has confirmed that, in the present state of the proceedings, she seeks no more than £Y.
(3) The Court of Appeal sent the case back to me to assess the amounts payable under the six heads of claim identified in paragraph 4 of the order on the foregoing basis.
(4) The Court of Appeal decided not to deal with the issue of whether the needs of the Claimant in the pre- and post- negligence situations had to be “objectively assessed”, did not consider the submissions of the Defendants on this basis and did not consider the competing submissions about Scenario B (see paragraph 14 above). I have to infer that it took this position either because it felt that the issue of the correct approach was covered in its existing judgment and/or that, in any event, my judgment contained sufficient findings to enable me readily to readjust the relevant calculations in accordance with the correct approach as ordained by the Court of Appeal and that it was thus not necessary to descend itself into the details of the quantification. That would be consistent with that court’s understanding of what the Defendants had put forward in Scenario B in Appendix 1. That is why, in my view, the order made by the Court of Appeal was in the terms it was. (I would add that I must regard the omission to mention the Supplemental Judgment in the order as an oversight and I can only assume it was not referred to because it was not mentioned in the draft sent to the court by the Appellants.)
(5) When the Court of Appeal (through the message of the Master of the Rolls of 18 December 2015) described paragraph 2 of the order in the terms that it did, it was intending to close the doors firmly and finally on the Claimant’s attempt to re-open the factual issue of whether her needs in the post-negligence scenario were “qualitatively different” from those in the pre-negligence scenario. However, it was not intending to restrict the ambit of the further proceedings before me such that I could not carry out fully and fairly the task set out in paragraph 4 of the order, the perception remaining that I could carry out that task without revisiting any part of evidence given at the trial and on the basis of the findings I had made.
(6) Following on from (5), if the consequences of not being able to review the transcript of the evidence for the purposes of carrying out the exercise set in paragraph 4 of the order had been spelt out by the parties in the Notes sent to the Master of the Rolls (which they were not), the clarification would have been in less apparently rigid terms.
A CONCLUSION COULD NOT BE REACHED EVEN AT THIS STAGE
It follows that before I can come to a final decision on the competing arguments in this case, I will need to receive from the parties their submissions, by reference to the evidence given at the trial before me (whether expert or otherwise), on what the objectively assessed reasonable needs of the Claimant were in the pre-negligence situation in respect of the six heads of loss identified in the Court of Appeal’s order. I shall want them to refer to the relevant paragraphs in the various experts’ reports, to the passages in the evidence that I heard, to the submissions made to me and to any paragraphs in my principal judgment or the Supplemental Judgment that impact on the issue.
This is essentially the exercise contemplated in the Defendants’ “pragmatic approach” to which I have referred. However, I should make it absolutely plain that I am not, at this stage, saying that that approach is correct or incorrect; I am simply saying that I want to know where the contentions on such a basis lead given the evidence heard at the trial before coming to a final conclusion. If this case is not resolved by agreement in the meantime, I will have to reach an overall decision based upon the submissions I have already received, but at least at that stage those submissions will have been informed by the consequences of referring to the evidence that I received at the trial.
I regret very much that I cannot reach a final conclusion at this stage, but the position is much less clear than I would have thought it ought to have been. The landscape I am required or permitted to survey is unclear and I do need to have the fullest picture before proceeding further. I am, therefore, taking my own pragmatic course at this stage before considering the issues raised finally.
Not unnaturally, it would be far better if the parties could resolve their differences by agreement. The Defendants have established what they will regard as a point of principle. It is to be hoped that, for the sake of a severely disadvantaged Claimant with a limited life expectancy, some satisfactory settlement could now be achieved. If it cannot, I will need the material I have requested before dealing with the case finally. In that event, I would hope to be able to deal with the remaining issues on the basis of written submissions, but I had better leave open the possibility of a further oral hearing if absolutely necessary.
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late