Sklair/Reaney – When does a Claimant have to give credit for pre-existing care needs ?

This article first appeared on the Serjeants’ Inn Chambers Healthcare Blog in March 2021.

 

A very common scenario in clinical negligence and personal injury claims is that the claimant’s negligent injury occurs on a background of pre-existing disability  – how does the court assess the damages for care in the claim ?

Examples of pre-existing disability in my own cases have included –

• Hydrocephalus;
• Spina bifida;
• Significant learning disability;
• Partial spinal cord injury at C5 resulting in tetraparesis.

 

The cases of Sklair and Reaney give some guidance as to the correct approach.

 

Sklair v Haycock 2009 EWHC 3328

Pre accident – 49 year old Claimant had Asperger’s and OCD. He had lived all his adult life with his father who provided basic needs such as food and laundry. He was unable to work but “able to lead a fairly independent life and he would travel to London on his own and see friends”.

The accident resulted in a cervical spinal cord injury causing “fairly severe limitations on the Claimant’s dexterity and mobility … as a result the Claimant has required care and attention 24 hours a day”. He had a shuffling gait, dragged his right foot and was at risk of falling. It was agreed that he also suffered PTSD or a chronic adjustment disorder with greatly increased anxiety requiring long term psychiatric care. The Court found that the Claimant could no longer live at home as before and now required 24/7 professional care in suitable accommodation.

The Claimant argued he was entitled to recover the cost of that 24/7 commercial care package in full with no credit for notional care needs.

The Defendant argued that the Claimant was only entitled to the cost of an additional 5 hours care per day caused by the negligent injury.

The Judge found for Claimant, the Claimant did not have to give credit for his notional care needs –

• “Where the Claimant would have continued to enjoy care and attention given out of love and affection which he now cannot enjoy because of the accident, I see no reason in either logic or justice why he should be required to place a value on that care and attention and then be made to give credit for it against his claim”.

 

Reaney v Staffs 2014 EWHC 3016 QB

A 67 year old Claimant suffered T7 paraplegia from transverse myelitis. The Defendant Trust in treating that injury negligently caused deep grade 4 pressure sores and osteomyelitis, contractures and hip dislocation. The combined effect of the non-negligent and negligent injuries was that the need for 24/7 double up care in suitable accommodation “cannot truly be disputed”.

The Claimant sought full compensation for all her disability.

The Defendant argued it was only liable for losses caused by the additional disability caused by its negligence, although it did not specify the losses caused by the pre-existing injury for which credit should be given.

The trial Judge found for Claimant –

• On the basis “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 Defendant had materially contributed to the condition – Bailey v MoD;
• And agreed with the Judgment in Sklair.

The Defendant appealed.

 

Reaney v Staffs 2015 EWCA Civ 1119

The Defendant submitted that the decision not to give credit for notional care needs in Sklair was on the basis that the care regime after the accident in that case could properly be described as qualitatively different from that which was required previously – a 24/7 care regime cf general supervisory care of an essentially independent life – and Court of Appeal agreed with this analysis.

Qualitatively different (different in kind) contrasted with quantitatively different (more of the same) where a Claimant would have to give credit for notional care needs. The Claimant submitted that on the judge’s findings the care provided was qualitatively different but the Court of Appeal disagreed.

The Court of Appeal did not agree with the judge’s analogy with material contribution (Bailey v MoD) either.

The Court of Appeal did not consider that the judge had made a reasoned finding that the Claimant’s care package required as a result of the negligence was different in kind from that which she would have required in any event and sent the case back to the judge for him to assess damages on the basis of whether the needs were qualitatively or only quantitatively different.

 

Reaney v Staffs 2016 EWHC 1976 QB

The case was sent back to judge for assessment but was subsequently compromised.

 

Conclusion

The key to these cases is an analysis of whether the care needs caused by the negligence are qualitatively different (different in kind) or only quantitatively different (more of the same) from the pre-existing needs.

However, there remains significant uncertainty as to how in practice that exercise will be undertaken by trial judges in light of Reaney being compromised at the stage it was.

There remains considerable scope for one judge’s “different in kind” to be another’s “more of the same”.

 

Practice Points

1. Be alert to the argument that pre-existing care needs may be disregarded.
2. Qualitatively different (different in kind) care needs justify disregarding the pre-existing care needs – in contrast with those which are only quantitatively different (more of the same);
3. A “Sklair” scenario (living with family and informal supervision before injury, need for full 24/7 professional care after it) is ideal for a Claimant – the Defendant in Reaney conceded it was qualitatively different and justified the notional care needs being disregarded.
4. The Claimant argued she satisfied the test in Reaney too, but it looked like a more difficult argument to make than in Sklair because of the significance of her injury before the negligence;
5. Ensure your medical and care expert evidence addresses the issue of the difference in care needs – in particular whether it is qualitatively or only quantitatively different.

 

Dr Simon Fox QC

23.3.21