Legal Watch: Personal Injury 2nd October 2014 Issue: 034
Causation/pre-existing condition The case of Reaney v University Hospital of North Staffordshire
NHS Trust and another (2014) EWHC 3016 (QB) deals with
In This Issue:
vulnerable claimant’s condition was made much worse by the
• Causation/pre-existing condition
defendants’ negligence.
• Civil procedure
In 2008, when she was 61, the claimant contracted transverse
• Civil procedure rules
what is effectively an ‘eggshell skull’ case, where an already
myelitis, a very rare inflammatory condition causing damage to the spinal cord. The condition left her paralysed below the midthoracic level and with no control over her bladder or bowels. During her hospitalisation, she developed a number of deep pressure sores with consequent osteomyelitis (infection of the
bone marrow), flexion contractures (abnormal shortening of the muscle tissue) of her legs and a hip dislocation. The combined
effect of those disabilities was that her lower limbs adopted a “windswept” configuration, causing her to fall from an upright
sitting position to the left. She was currently only able to sit
out in her wheelchair for four hours at the most; otherwise she
remained in bed. The defendants had admitted negligence in respect of the pressure sores and their consequences.
Finding in favour of the claimant the High Court judge held that it was apparent that the pressure sores and their consequences
had made a significant and material difference to the claimant’s
physical well-being and her care needs. Without them, she would have had a much better quality of life, spending her
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waking hours out of bed in a standard wheelchair (with the
The Major Bodily Injury Group (MBIG) | Spring
she would have been able to self-propel. She could have
London
ability to maintain a good spinal posture and balance) which
undertaken a few basic household tasks and would have been able to get out and about much more than was possible in her present condition. While she was inevitably going to be
doubly incontinent, her bowel management would have been
better and she would not have required the urethral catheter which she used now. But for the development of the pressure sores in hospital and their consequences, she would have required no more than roughly seven hours of professional
Seminar | 28.04.15 | The Wellcome Collection,
care each week until the age of 70; she now required two
carers on a 24/7 basis, a requirement that would continue for the rest of her life. Further, she and her husband would
need to move to a larger property to accommodate the
carers. They would also need a larger vehicle. While the court accepted the general thrust of the trusts’ submission
that in law a defendant could only be liable to compensate a claimant for the damage it had caused him or to which
it had materially contributed, this case should be seen as a reflection of the principle that a tortfeasor had to take
his victim as he found him. And, if that involved making
the victim’s current damaged condition worse, then the tortfeasor had to make full compensation for that worsened
condition. On the evidence, the trusts’ negligence had made the claimant’s position materially and significantly worse than it would have been but for that negligence. She would not have required the significant care package (and the
accommodation consequent upon it) that she now required but for the negligence. Compensation should be assessed,
hopefully by agreement, on that basis. The appropriate award for pain, suffering and loss of amenity was £115,000.
03
Civil procedure Thomas v Baker and another [Lawtel 29/09/2015] concerned
clearest possible expert evidence. The unavailability of the
to start.
there was not enough time and the trial was adjourned. The
an application to adjourn a trial one week before it was due The claimant/applicant applied for permission to amend
her particulars of claim and to adduce new expert evidence in her personal injury claim against the second defendant/ respondent insurance company.
second defendant’s expert witness was unfortunate, but claimant was permitted to amend her particulars of claim, adduce further evidence and amend the schedules of loss.
The second defendant was given liberty to serve evidence in response.
The claimant had been seriously injured in a road traffic accident over four years earlier and had been rendered
Comment
paraplegic. A trial date had been set for slightly more than a
Would this application have been dealt with any differently
week after this application. A new issue had recently arisen
post Mitchell, pre Denton? It is possible that the judge
in relation to the propensity of one of her hips to dislocate.
could have been more concerned with the impact on court
The condition was rare and one which the experts had not
resources of vacating a trial so close to the fixed date.
foreseen. The current value of the claim was £8.5m. The
Could other work be assigned to the judge in the short
hip displacement issue could have resulted in an award of
time available? He may also have been less concerned
a further 20 years of 24-hour care, at an estimated cost of
with fairness between the parties which Denton has
£2m. A number of medical approaches to the issue were
reemphasised. However, the serious nature of the medical
open to the claimant and she was due to meet with a
issue which had arisen and the fact that the claimant could
surgeon who would advise her. One of second defendant’s
not have anticipated it probably means that the same order
key medical experts was out of the country until very shortly
would have been made.
before the trial.
The second defendant contended that the claimant’s application placed it in a very difficult position in respect of understanding the case to be met, preparing expert reports
in response to new evidence and assessing the impact of the new issue on the case and its value. The second
defendant further submitted that the application should only be granted if the trial was adjourned.
The High Court judge held that no fault was attributable to
either party in relation to the lateness of the issue arising. It would clearly have a very significant impact on the claim and, in order to do fairness to the parties, it was inevitable that
the trial date would be vacated. It would have been unfair not to give the second defendant an adequate opportunity
to consider and respond to such a significant issue. It would be equally unfair for the court not to have the benefit of the
04
Civil procedure rules 1 October sees the introduction of the next stage of the government’s attack on whiplash (soft tissue injury)
claims with amendment to CPR. The principal intention of the changes is to impose further control over medical evidence in cases brought under the RTA portal. Stage 2 of the protocol cannot be engaged unless the claimant has obtained a fixed costs medical report at a fee of £180. Any
further medical evidence (for which the claimant requires
justification) is also restricted to specified disciplines, at prescribed fixed fees, namely:
• £420 for a consultant orthopaedic surgeon • £360 for a consultant in A&E medicine • £180 for a GP • £180 for a physiotherapist • £30 plus the direct cost to the holder of the medical records to obtain medical recordslimited to £80 in total for each set of records required • Addendum reports (save for consultant orthopaedic surgeons) are limited to £50 • Part 35 answers are limited to £80 The claimant will be justified in obtaining a second report only where the first fixed fee report has been sent to the defendant and recommends a supplementary report from the first expert or a further medical expert’s report.
If considered necessary, but only with the defendant’s authority, the insurer may now send, with the response to the
CNF, the defendant’s account of the accident. The medical
expert is then invited to consider alternative diagnoses and prognoses depending on which version of the accident is
found to be true. The expert must not have been involved in or in any way become involved in the claimant’s treatment.
05
Pre-med offers have not been outlawed completely but the
rules now make it clear that any such offer will have no costs consequences until 21 days after the defendant has been sent a copy of the fixed fee medical report.
These changes apply to cases where the CNF is submitted on or after 1 October 2014.
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