piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Quantity not quality

The decision of Foskett J in Reaney v University Hospital of North Staffordshire NHS Trust  [2014] EWHC 3016 (QB) (rightly) caused some excitement in the legal blogosphere when it was handed down in October 2014. It appeared that he had extended the familiar eggshell skull rule by holding that a Defendant who had injured a woman with pre-existing care needs was liable to compensate for her full care needs not just the additional needs. That decision has now been overturned by the Court of Appeal [2015] EWCA Civ 1119  who draw a useful distinction between qualitatively and quantitatively different care needs. The Facts Mrs Reaney, was admitted to hospital in December 2008 with transverse myelitis. As a result she was permanently paralysed below the mid-thoracic level and classified as a T7 paraplegic. It was common ground that this was not caused by any negligence. As a result of a prolonged hospital stay she suffered pressure sores. It was admitted that this was caused by the Defendant’s negligence. As a result of the transverse myelitis she was always destined to be confined to a wheelchair for the rest of her life. It was found that but for the development of the pressure sores, the Claimant would have required some professional care, increasing as she got older. But as a result of the pressure sores and their resulting complications, she would require 24/7 care from 2 carers for the rest of her life. The Decision of Foskett J Foskett J with reference to Paris v Stepney Borough Council [1951] A.C. 367 held at ¶69 that while a Defendant is only liable to compensate for damage which he has caused or to which he has materially contributed, where he has made the Claimant’s position substantially worse he must make full compensation for that worsened condition. He therefore concluded that she was entitled to full compensation for all her care, physiotherapy and accommodation costs, including the care she would have required but for the negligence. The Decision of the Court of Appeal This conclusion was firmly rejected by the Master of the Rolls who held at ¶18 that the tortfeasor must compensate for the condition in which the Claimant finds herself only to the extent that it has been worsened by the negligence. The rule that a Defendant must take his victim as he finds him is, as the Defendant had argued before Foskett J (¶53), sometimes to a Defendant’s disadvantage and sometimes to their advantage. A Defendant who injures someone with a pre-existing vulnerability, such as the famous eggshell skull, is liable for the full loss flowing from his negligence. However, in this case, it was right that the loss should reflect that the Defendant had injured a T7 paraplegic who already had significant care needs. In fact before the Court of Appeal it was, perhaps surprisingly, common ground between the parties that if the Defendant’s negligence gave rise to substantially the same kind of care and other needs as her pre-existing needs, then the damage caused by the negligence was only the additional needs. However, if the care needs flowing from the negligence were qualitatively different from the pre-existing needs, then those needs were in their entirety caused by the negligence. This view was endorsed by Dyson MR at ¶19. The Claimant’s unsuccessful case on appeal was, therefore, that Foskett J had found the care needs arising from the tortious act to be qualitatively different and so there was no need to disturb his overall conclusion. The Master of the Rolls dealt with the question raised as to the position where there was no means of recovery of the underlying loss. He was firm that the ability to recover for the underlying loss was irrelevant and that a person can only ever be liable for the loss they have caused. Comment At first blush the Court of Appeal’s decision appears to have brought welcome clarity. Foskett J’s judgment, while perhaps giving an attractive result, was not easy to reconcile with the earlier authorities. However, as shown by the point taken by the Claimant before the Court of Appeal, it leaves open significant scope for argument as to when a care need is qualitatively different from pre-existing needs. Those advising both Claimants and Defendants will in future cases of this sort want to scrutinise carefully the differences between the care packages and be ready with arguments as to why those differences should be found to be qualitative or quantitative as appropriate. Finally, as unattractive as this result might seem, there is still nothing to stop a court applying the principle in Paris v Stepney Borough Council and making a higher award for PSLA to reflect the fact that the consequences of injury may be substantially worse for an already injured person.

Punching inanimate objects and common sense

In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way. Lewis missed George and ended up hitting the water fountain, cutting his right thumb. Consequently proceedings were started with the local authority as the Defendant, it being alleged that the water fountain had a sharp underside which amounted to a real and foreseeable risk. The judge at first instance agreed with this holding that there was a real risk that children might skylark around and could easily trip and cut their heads against the underside of the fountain (you’ll note that this wasn’t what happened to Lewis!). As such, Lewis was awarded £3,215.16. The Defendant appealed and the Court of Appeal (MR, McFarlane LJ and Sharp LJ) has today handed down their decision (West Sussex CC v Master Lewis Pierce (A child by his litigation friend Mrs Annette Pierce) [2013] EWCA Civ 1230. The Court allowed the appeal with Lady Justice Sharp noting that the trial judge had failed to identify and then answer the correct legal question. The judge failed to mention the Occupiers’ Liability Act 1957 and proceeded on the flawed basis that “once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment.” Sharp LJ helpfully set out the correct question in such cases: “The question which has to be addressed … is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.” The answer to the question in this case was “yes”, the water fountain was reasonably safe (or more accurately that the evidence did not establish that it was not safe). The Court did not consider the underside of the fountain to be sharp (having had the opportunity to look at it) but even if it were sharp is was said that “by no stretch of the imagination could it be said to constitute a danger to children. Certainly the edge could be have been bevelled, or padded, and had that been done the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances … as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous edges … against which children might accidentally injure themselves …”. In conclusion Sharp LJ said “The law would part company with common sense if that were the case, and I do not consider that it does so”.

Long live the Litigant in Person

Some of the readership may have heard there was a move by the Civil Justice Council to rebrand LiP’s “Self Representing Litigants”.   This is now not going to happen. Lord Dyson, Master of the Rolls has stated:   “The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf “   See the short practice guidance by following this link:   https://dl.dropbox.com/u/18097599/annex-a-practice-guidance_litigants-in-person-2.pdf   This sensible decision is welcome as it was important to clear this up before "J day" as it is widely expected that there will be many more LiPs as a result of the costs reforms.    

Smile... you're on candid camera!

In the Judicial Studies Board Annual Lecture yesterday Lord Neuberger, Master of the Rolls, considered the issue of open justice and, in doing so, revisited the contentious question of cameras in court.  In a compellingly argued lecture, he expressed the view that "if we wish to increase public confidence in the justice system, transparency and engagement, there is undoubtedly something to be said for televising some hearints, provided that there were proper safeguards to ensure that this increased access did not undermine the proper administration of justice." The full text can be found online:  http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-jsb-lecture-march-2011.pdf