Reaney v University Hospital of North Staffordshire NHS Trust & Anor (No 2)

Where negligence aggravates a claimant’s pre-existing needs, recoverable damages are confined to the additional needs caused by the negligence. The comparison must be between the claimant’s objectively assessed reasonable needs after the negligence and the objectively assessed reasonable needs in the counterfactual position. It is not a comparison with the level of support actually provided because of limited resources. The distinction between needs that are merely quantitatively different and needs that are qualitatively different remains important: substantially more of the same need does not make the defendant responsible for the whole need. Where an appellate remittal leaves the factual basis for quantification unclear, the court may require focused submissions by reference to the existing trial evidence before assessing damages.

The claimant had succeeded at trial in recovering damages for the full extent of her care and related needs following pressure sores for which liability was admitted. The defendants appealed, and the Court of Appeal allowed the appeal, holding that the claimant could recover only the additional needs caused by the negligence where the needs were quantitatively, rather than qualitatively, different: [2015] EWCA Civ 1119.

The case was remitted for assessment under specified heads of loss. The parties disagreed about whether the assessment had to rely solely on existing factual findings or could refer to the evidence heard at trial, and about whether pre-negligence needs had to be assessed objectively. The central issue was how the appellate directions should be implemented fairly and accurately.

1. The Court of Appeal’s governing approach was that where negligent injury produces needs substantially of the same kind as pre-existing needs, the recoverable damage is the additional need only. A qualitatively different need may be attributable in its entirety to the negligence. The assessment was to be undertaken under the six identified heads: care, accommodation, equipment, transport, physiotherapy and holidays.
2. The proper comparison, where the pre-existing and post-negligence needs differ, is between the objectively assessed reasonable needs in each situation. The comparison is not necessarily between the post-negligence needs and the services actually supplied in the counterfactual situation, since resource constraints may mean that actual provision falls below objectively reasonable need.
3. The Court of Appeal had endorsed the approach in Kemp and Kemp. The judge accepted that the objectively assessed comparison reflected the correct principle, but found that the original judgment’s references to local-authority provision created uncertainty about whether the pre-negligence needs had been assessed on that basis.
4. The clarification that the assessment was to proceed on the basis of existing findings was intended to prevent the claimant from reopening the issue whether her needs were qualitatively different or obtaining a second opportunity to establish that case. It was not intended to make a fair assessment of additional loss impossible through an artificially constrained reading of the directions.
5. Final quantification was deferred. The parties were directed to make further submissions, by reference to the expert reports, trial evidence, submissions and both the principal and supplemental judgments, addressing the claimant’s objectively assessed reasonable pre-negligence needs under each head of loss. The judge left open a further oral hearing if necessary.

1. High Court (Queen’s Bench Division): the original trial judgments were handed down on 19 September 2014 and 31 October 2014, including [2014] EWHC 3016 (QB).
2. Court of Appeal: the defendants’ appeal was allowed and the case was remitted for reassessment in light of the appellate guidance: [2015] EWCA Civ 1119.
3. High Court (Queen’s Bench Division): the present judgment gave procedural directions for further submissions and deferred final quantification.