Reaney v University Hospital of North Staffordshire NHS Trust & Anr  EWCA Civ 1119
Causation in cases of negligence is normally decided on a ‘but for’ basis, with the court asking the question ‘but for the negligence, would the claimant have sustained the loss complained of?’
However, cases which involve a pre-existing condition or damage make the situation more complicated.
The ‘eggshell skull rule’ is a long established legal rule which applies when a court looks at a question of whether a particular act caused an injury. The principle is that you take your victim as you find them; the classic example is if A punches B in the head, but B has an eggshell skull and the punch causes serious damage to B, then A will be liable for all the harm caused, even though a punch wouldn’t normally seriously harm any other person without an eggshell skull. In negligence it means if a victim is vulnerable to injury in some way – perhaps because of a medical condition – the full extent of the damage suffered by the victim is recoverable from the person who caused the damage, even though an ‘ordinary’ victim might have suffered lesser damage. In these cases, it is not open to the defendant to argue that their liability should be limited to what an ‘ordinary’ person may incur.
This principle, however, has never applied to a situation where a negligent act worsens a pre-existing injury, where it’s possible to tell the difference between damage caused by a pre-existing injury, and additional damage caused by the negligent act.
In December 2008, the claimant, Mrs Christine Reaney, was admitted to hospital in Staffordshire. She was then aged about 61. She had developed a condition which meant her spinal cord was inflamed on both sides, resulting in her becoming paralysed from the middle of her back down. While this injury was not caused by negligence, it meant that Mrs Reaney would require care that would gradually increase as she aged. By the age of 75, Mrs Reaney would require care of about 31.5 hours per week.
Whilst in hospital for this injury, Mrs Reaney developed a number of grade 4 deep pressure sores. As a consequence, Mrs Reaney suffered inflammation of the bone marrow, hip dislocation, serious contractures of the lower limbs and increased lower limb problems. The hospital accepted that Mrs Reaney’s sores and consequential injuries were all caused by their clinical negligence. Mrs Reaney’s future care needs were increased substantially beyond those expected, as a result.
The issues in this case were relatively narrow, and liability for the sores and consequential injuries was accepted by the NHS Trust. At first instance, the High Court was therefore only concerned with the extent of causation and the amount of compensation which would be appropriate. The question for the court was whether the Trust should be liable for all of Mrs Reaney’s care needs, or only the additional needs arising from their negligent care. On either basis, the court also had to value the claim.
Foskett J held that the Trust should be liable for all of Mrs Reaney’s care needs, even though she would have required some care as a result of a pre-existing condition not caused by the hospital. This seemingly extended the scope of the ‘eggshell skull rule’.
The judge said in his judgment that the eggshell skull rule applied and if the Trust’s negligence had made matters worse, then they must make full compensation for the worsened condition. The judge noted that the negligence had made Mrs Reaney’s position “materially and significantly worse than it would have been but for that negligence.”
Foskett J further found that if causation had not been made out on the ‘but for’ basis, it would have been on a ‘material contribution’ basis. The ‘material contribution’ basis is a rule established by a case called Bailey v MOD  1 WLR 502, which gives the court another route to finding causation where medical science cannot establish ‘but for’ causation. In these circumstances, the court can find causation where the contribution of the negligence was ‘more than negligible’ – i.e. more than an insignificant amount.
The Trust appealed.
Court of Appeal Decision
The parties agreed that the extent of the Trust’s liability turned on whether or not Mrs Reaney’s needs were ‘substantially of the same kind as her pre-existing needs’ or if her needs were ‘qualitatively different from her pre-existing needs’. In the first scenario, the Trust should be liable only for additional needs, and in the second, the Trust should be liable for all needs as they have been caused in their entirety by negligence.
The Trust argued that the claimant should only be compensated for the additional cost of her care needs insofar as they were increased as a result of their negligence. They also argued that Mrs Reaney merely required ‘more of the same’ in terms of care and Foskett J therefore erred in finding them liable for all of her needs.
The claimant argued that Foskett J’s judgment ought to be upheld; the claimant’s care needs post-negligence were completely different from that which was required before the negligence. This was on the basis that carers with significantly more expertise than before would now be required to care for Mrs Reaney, and provide significantly more care. They said that this was a ‘qualitative’ difference. Because the care needs were so different post-negligence, the claimants argued that the judge was entitled to find that those needs were caused entirely by the Trust’s negligence.
The court allowed the appeal and ruled that in circumstances where negligence worsens a pre-existing condition, a claimant is only entitled to recover damages for the extent to which the pre-existing condition has been worsened by the negligence. The Master of the Rolls noted that the Trust was entitled to take the claimant as they found her; she was not an able-bodied person prior to the negligence, but a ‘T7 paraplegic […]who, as a result of her condition, already had considerable care and other needs’.
The court distinguished between cases where the care needs arising from the negligence were qualitatively different from cases in which ‘more of the same was required.’ It found nothing in Foskett J’s judgment to suggest that a more significant care package would be required or any more specialist care was needed. It therefore could not be said that the care required was qualitatively different – although it may differ in amount – and therefore the finding that the defendants were liable for all of Mrs Reaney’s care and physiotherapy needs could not stand.
Dealing with the point of ‘material contribution’ causation, the Court of Appeal rejected Foskett J’s finding that causation could be made out via this route. The Court said that Mrs Reaney’s case was one where there was no doubt about her condition before or after the negligence, and so ‘but for’ causation could be established. It was, therefore, not necessary to follow the route to causation available from Bailey.
This case serves to re-enforce the well-established limits to liability in cases involving pre-existing conditions. The effect of Foskett J’s decision could have been that defendants would be liable for claimants’ full care costs where the need for care was, on the whole, unrelated to the defendants’ negligence.
This case serves as a helpful reminder that in cases where losses are significantly different in their nature from losses that may have occurred pre-negligence, they are recoverable in full. It reminds all parties that judges should make findings in such cases about whether losses are ‘qualitatively different’ when compared to the pre-existing condition, or whether they are simply ‘more of the same’, to enable them to assess the limits of defendant liability and therefore the appropriate compensation for the claimant.