Quality v. Quantity – the balancing act
In early November, the Court of Appeal handed down its judgment in Christine Reaney v (1) University Hospital of North Staffordshire NHS Trust (2) Mid Staffordshire NHS Foundation Trust  EWCA Civ 1119, which clinical negligence practitioners need to be aware of and prepare for evidentially.
The Court of Appeal (Lord Dyson MR, Tomlinson LJ Lewison LJ) unanimously agreed that where a negligent defendant caused a loss which was quantitatively, but not qualitatively different from the claimant’s pre-existing needs, the defendant would only be liable for a claimant’s additional loss.
On the other hand, where the loss arising out of the negligence can be said to be qualitatively different then a claimant could recover for all of those losses as they can be said to have arisen/caused entirely by the negligence of the defendant. Although at first glance this may appear to be a simple and straight-forward distinction, it is not as this case demonstrates.
Ms Reaney had been diagnosed as suffering from transverse myelitis, a neurological disorder caused by inflammation across both sides of one level, or segment, of the spinal cord at the age of 61. She failed to recover from this condition and became paralysed below the mid-thoracic level.
As a T7 paraplegic she required a few hours of care each week rising to 31½ hours after the age of 75. Such care would have enabled her to lead a largely independent life.
Unfortunately, during an extended period of hospitalization, Ms Reaney developed several deep pressure sores with consequent osteomyelitis (inflammation of the bone marrow due to infection), hip dislocation, lower limb contractures and increased spasticity. This was caused by the defend-ant’s admitted negligence. As a result, Ms Reaney required 24 hour care provided by two carers. This was a substantial quantitative increase but was not qualitatively different because it concerned care for the same matters as previously required, albeit for longer.
Foskett J. at first instance (Reaney v University Hospital of North Staffordshire  EWHC 3016 (QB),  PIQR P4), found that Ms Reaney “…would not have required the significant care pack-age (and the accommodation consequent upon it) that she now requires but for the negligence”. He went on to find that the requirement for 24 hour care provided by two carers for the rest of Ms Reaney’s life was “materially different from what she would have required but for the development of the pressure sores and their sequalae”. His Lordship therefore concluded that Ms Reaney was entitled to full compensation of all her care, physiotherapy and accommodation costs.
The defendant appealed contending that it should only be liable for Ms Reaney’s care needs over and above those that would have existed ‘but for’ the negligence.
In allowing the appeal, the Court of Appeal concluded that the findings of Foskett J. did not support his conclusion that the significant care package required as a result of the negligence was qualitatively different from that which would have been required ‘but for’ the negligence. Ms Reaney’s post-negligence care needs were substantially of the same kind as her pre-existing needs and therefore the defendant was only liable to meet the cost of her additional needs arising as a result of the ad-mitted negligence (Performance Cars v Abraham  1 QB 33, Baker v Willoughby  AC 467 and Halsey v Milton Keynes General NHS Trust  EWCA Civ 576,  1 WLR 3002 followed). The decision in Sklair v Haycock  EWHC 3328 QB upon which Foskett J. had re-lied upon in reaching his decision on causation was distinguished by the Court of Appeal on the basis that in that case the post-accident care needs were qualitatively different.
The Court of Appeal also noted that there was no cause for recourse to the modified “but for” test of material contribution as set out in Bailey v Ministry of Defence  EWCA Civ 883,  1 WLR 1052, as Ms Reaney’s pre-accident condition and the injuries suffered as result of the defendant’s negligence were not in doubt.
The Implications for Claimants and their Representatives
Determining the qualitative difference in the case of a loss/need will not be a straightforward exercise, especially where a claimant’s pre-negligence needs are expected to change over time.
In the Court of Appeal, counsel for Ms Reaney sought to argue that the expertise now required of the carers was different (more specialist) to that of the occasional carer that would have sufficed had Ms Reaney not suffered the bedsores and their consequences. He also argued that the physio-therapy regime required as a result of the negligence was different in kind to that required previous-ly.
These arguments were roundly rejected by their Lordships because it was said that there was an absence of reasoned findings by Foskett J that the care package required following the negligence was different in kind from that which would have required but for the negligence.
This reasoning illustrates the importance of claimant representatives obtaining direct quantitative as well as qualitative evidence from their experts detailing the pre and post-negligence position. Furthermore, at trial, it is imperative that claimant counsel stresses to the trial Judge the need to clearly deal with these two substantive matters in the overall balancing exercise when giving judgment on losses claimed. Failure to do so is likely to result in full losses which are in reality qualitatively different not been awarded.
It will be interesting to see what the Judges consider to be the threshold beyond which losses are considered qualitatively different.
Shahram Sharghy and Tom Mountford
This article was first published in the AvMa Lawyers Service Newsletter November 2015.