Reaney v North Staffordshire: Egg-shell skull rule does not apply where the shell is already broken
Catriona Stirling
The Court of Appeal has handed down its judgment in the case of Reaney v University Hospital of North Staffordshire NHS Trust & Anr [2015] EWCA Civ 1119.
The key issue in this case was how causation and quantum should be determined where a pre-existing injury is worsened by a Defendant’s negligence.
Background
Mrs Reaney was admitted to the North Staffordshire Royal Infirmary in December 2008 with an illness that caused her to become permanently paralysed below the mid-thoracic level. It was common ground that this was not caused by negligence. She would have had some care requirements and other needs in any event as a result of her condition.
During an extended period of hospitalisation, she developed a number of grade 4 pressure sores with severe sequelae that significantly affected her physical wellbeing. It was undisputed that, following the development of the pressure sores, she would have far greater future care and other needs than she would otherwise have had.
The Defendants admitted liability in relation to the pressure sores and the only live issues in the litigation were the extent of causation and the quantification of damages.
High Court
A key issue at trial was whether the Defendants should be said to have caused:
all of Mrs Reaney’s care needs following the development of the pressure sores and their consequences, or
those needs less the care needs that she would have had in any event, but for the negligence.
Foskett J held that the Defendants had caused all of Mrs Reaney’s future care needs, notwithstanding that she would have required some care in any event.
He accepted the Defendants’ submissions that in law a defendant may only be liable to compensate a claimant for the damage it has caused to him or to which it has materially contributed.
However, he said that he saw the 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”.
He noted that the fact that a defendant’s breach of duty has worsened an existing condition may lead to a higher assessment of loss, since the consequences of the impairment may be greater. For example, he said, it was much worse to be totally deaf than half deaf, and the additional hearing loss in becoming totally deaf would cause much greater damage than the initial hearing loss in becoming half deaf. Sight loss could be regarded in a similar way.
He held that the Defendants’ negligence had made the Claimant’s position materially and significantly worse than it would have been, but for the negligence. If not for the negligence, she would not have required the significant care package that she now required. The care now required was “materially different” from what she would have otherwise required. She was therefore entitled to full compensation of all of her care (and physiotherapy and accommodation) costs.
If he was wrong about causation in the ‘but for’ sense, he said that he would have found that the Defendants had ‘materially contributed’ to the condition that had led to the need for the significantly increased care package.
Court of Appeal
On appeal, the Defendants argued that the Claimant should only have been awarded the cost of meeting her care needs to the extent that the needs were increased as a result of the negligence.
Allowing the appeal, the Court of Appeal held that if Foskett J, in saying that a tortfeasor who makes a victim’s damaged condition worse must make full compensation for that worsened condition, had meant that the tortfeasor must compensate for the condition in which the victim finds herself, he was wrong to do so. He must compensate for her condition only to the extent that it has been worsened by the negligence.
In the course of oral argument before the Court, the parties agreed that in a case of this nature, the Defendants were entitled to take the Claimant as they found her. They had not injured a previously fit and able-bodied person; they had injured a woman who was a T7 paraplegic and who, as a result of that condition, already had considerable care and other needs.
It was common ground that if the Defendants’ negligence had caused Mrs Reaney to have care and other needs which were substantially of the same kind as her pre-existing needs, then the damage caused by the negligence was the additional needs. On the other hand, if the needs caused by the negligence were qualitatively different from her pre-existing needs, then those needs were caused in their entirety by the negligence.
The thrust of the Claimant’s submissions were therefore directed towards arguing that the judge had found that the care required as a result of the negligence was qualitatively different from the care that would have been required but for the negligence, such that there was no basis for disturbing his overall conclusion on the issue of causation.
The Claimant accepted that if the judge was saying that the care package was ‘more of the same’ (even if significantly or substantially more of the same), then he was wrong to hold that the need for it (in its entirety) was attributable to the negligence.
However, she argued that, due to her condition, the expertise required of her carers now was different from that of the carers who would have sufficed absent the worsening in her condition.
The Court of Appeal rejected these arguments, holding that there was nothing in Foskett J’s findings to suggest that the significant care package required as a result of the negligence was qualitatively different from the care that would have been required, but for the negligence.
His judgment was consistent with a finding that the significant care package was quantitatively, but not qualitatively, different from what would have been required, but for the negligence. He had not made any finding that the Claimant now required specialist carers who have skills which are not possessed by carers of the kind who would have sufficed to satisfy her pre-existing needs.
The judge’s findings that all of Mrs Reaney’s care (and other) needs were caused by the Defendants’ negligence could not, therefore, stand.
The Court of Appeal further rejected Foskett J’s finding that even if ‘but for’ causation could not be made out, then causation on a ‘material contribution’ basis could be.
The Court noted that the principles in Bailey v MOD [2009] 1 WLR 1052 are applicable where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened, but can establish that the contribution of the negligent cause was more than negligible.
In the present case there was no doubt about Mrs Reaney’s medical condition before the negligence occurred or about the injuries that she suffered as a result of the negligence. There was therefore no need to invoke the principle applied in Bailey.
Analysis
Prior to Foskett J’s judgment in this case, the egg-shell skull rule (sometimes referred to as ‘the thin skull rule’ or ‘take your victim as you find him’) had been commonly understood to apply only to situations where the victim of negligence had some pre-existing disposition or vulnerability to further damage, such that negligence was likely to cause greater damage to that victim that it would cause to an ‘ordinary’ victim without such vulnerability.
In such a case, a defendant would be held to have caused the entirety of the damage. It would not be open to a defendant to argue that he should be held to have caused damage only to the extent that it would have been caused to an ‘ordinary’ victim.
Foskett J’s judgment had appeared potentially to extend the scope of the egg-shell skull rule to cases where a victim of negligence had some pre-existing actual injury (as opposed to a mere vulnerability to injury) which was worsened by negligence, such that a defendant should be held to have caused all of the damage and consequent needs, even though the victim would have had some needs in any event, as a consequence of the pre-existing injury.
It had not previously been thought that a defendant could be held liable for the entirety of an injury after worsening a pre-existing injury, where the extent of the pre-existing injury and the worsening were clearly distinguishable and severable.
The Court of Appeal has now confirmed that if this was the basis of Foskett J’s decision, then that basis was wrong, and that a defendant will not be held to have caused all of the consequences of a victim’s injury where its negligence has merely worsened a (severable) pre-existing condition.
This must be correct as a matter of principle. The egg-shell skull rule is therefore applicable only where there is a pre-existing vulnerability to damage.
Foskett J may have been misled into thinking that Mrs Reaney was entitled to recover for the full extent of her injury on the basis that her condition following the negligence was worse than the sum of its constituent parts.
While he was right to regard, for example, the loss of sight in both eyes as worse than the loss of sight in two individual eyes considered separately, it would be a fallacy in that event to regard the damage caused by the loss of sight in a second eye as equal to the loss of sight in one eye. The true damage would be the total loss of sight, less any impact upon sight from the pre-existing loss in the first eye. That would of course be a much greater loss than the loss of one eye in isolation.
Mrs Reaney’s case ought to have been analysed in the same way, as it was by the Court of Appeal, by considering what damage was additional, even if that additional damage constituted the vast bulk of the damage viewed as a whole.
More helpful to claimant lawyers is the Court of Appeal’s acceptance of the principle that if the needs caused by the negligence were qualitatively different from the pre-existing needs, then those needs were caused in their entirety by the negligence.
The Court noted that there was nothing in Foskett J’s judgment to suggest that there was such a qualitative difference in this case.
However, it referred to the decision in Sklair v Haycock [2009] EWHC 3328 (QB), which allowed full recovery of care needs following negligence which worsened the claimant’s condition, despite some pre-existing care needs. It said that that decision was correct, on the basis that the needs following the accident in that case were qualitatively different.
In that case, the claimant had lived an essentially independent life, but required some supervision from his father. He had then been injured in a road traffic accident caused by the defendant’s negligence and, as a result, required care on a 24 hour basis.
The Court of Appeal accepted that the decision in Sklair to allow the entire cost of the 24 hour care, without deduction of the care provided by the claimant’s father,could be justified as based on an issue of causation (although that was not how it had been analysed by the judge).
In their view, the care regime required after the accident in Sklair could properly be described as qualitatively different from that which had previously been needed and would have been needed in due course. But for the accident, the claimant would have required general supervisory care of an essentially independent life. This was to be contrasted with his need for personal support in a 24 hour care regime as a result of the accident.
Therefore, while it is no longer open to claimant lawyers, following the Court of Appeal’s decision in Reaney, to argue as a matter of general principle that where a pre-existing condition has been worsened, a defendant should be liable for all of the consequences, the case is a useful reminder that where the losses caused can be said to be qualitatively different from those which would have occurred in any event, then they may be recoverable in full, with no requirement to give credit for those ‘similar’ losses.
The trial judge did not make explicit findings on this issue in the Reaney case, possibly because it was not brought to his attention. It is therefore important that lawyers are alert to this issue and, in cases where a pre-existing injury is worsened and there would have been some losses in any event, remember to ask judges to make findings about whether a loss is qualitatively different, or just ‘more of the same’.