“A typical T7 complete paraplegic woman aged 66 (sic) will be able to manage largely on her own. She will require some stand by support with transfers and some hands on support with lower half activities of dressing, undressing and personal hygiene. Within the NHS the majority of such women will rely on their family members for the support they require. They may receive some local authority support in the morning with getting up and occasionally in the evening with going to bed, though the latter is not common in paraplegics. Between times they rely on their partners or family or friends for support.”
“44. The pressure sores the Claimant developed on the sacrum and buttocks in hospital have healed, but she is left with a large area (10 cm X 6 cm) of vulnerable skin, described by Mr Goldin (Consultant in Plastic, Reconstructive/Cosmetic Surgery) in an unchallenged report as “very depressed below the surrounding skin contour, where the scarring is adherent to the underlying sacral bone and adjacent sacroiliac joint.”
“(i) From about six months after her discharge from hospital in October 2009 (which, for convenience, I will take as1 March 2010 although I doubt that the date is material for the purposes of the case), it became apparent that the Claimant suffered from pressure sores and their sequelae that had made a significant and material difference to her physical well-being and her care needs from the position had those sores and their sequelae not been permitted to develop. The objective analysis of the position (which, for this purpose has to be seen as yielding a different result from what the local authority, juggling limited resources, assessed as being required) shows that she required henceforth two carers on a 24/7 basis, a requirement that will continue for the rest of her life. I choose the six month period because Dr Welsh obviously felt, at least until the New Year in 2010, that there was some prospect that the Claimant would be (or could be made to be) capable of independent transfers, but that prospect became impossible within a few months. That is, to some extent, reinforced by the development of the other (and since then) remaining pressure sore on her left ischial tuberosity. But for the development of the pressure sores in hospital and their sequelae, the Claimant would have required no more than approximately 7 hours of professional care each week (supplemented by a very modest level of family support at the time of transfers) until the age of 70. Those needs would have been met by local authority carers and her family. The care would have been unpaid for save to the extent that any State benefits to which the local authority would have been entitled to claim (or re-coup) from the Claimant. She would have expended no personal money on this care because she had insufficient resources to do so. ….. (iii) As already indicated, the Claimant’s future care requirements for the rest of her life fall to be assessed on the basis that she requires 24/7 care from two carers (calculated on the basis indicated in paragraph 49 above) such that she and her husband will need to move to a larger property in order to accommodate the carers – and indeed more comfortably to accommodate other necessary aids and equipment to meet her needs…. (iv) The same considerations apply to the need for a larger vehicle to accommodate the Claimant…..”
“24. Mr Feeny takes a point in relation to the Claimant’s future physiotherapy requirements in the light of Ms Knight’s evidence. Her evidence was to the effect that prior to the age of 70 the Claimant would have required six sessions a year but for the development of the pressure sores, but she now requires 18 sessions. After the age of 70 she will, Ms Knight said, have additional problems with her limbs and there would need to be an increase to 24 sessions whereas, but for the development of the pressure sores, she would have required (sic). Ms Knight’s evidence was not countered by an equivalent expert on the Defendants’ side and, given that I found her evidence generally persuasive, I accept this analysis. 25. Again, as I understand it, Mr Feeny questions the claim for the full amount of the physiotherapy costs. The answer is exactly the same as in relation to future care, accommodation and transport. In this particular case, it is not at all clear that the Claimant would have been provided with the degree of physiotherapy that Ms Knight says would have been required in the “but for” scenario – even though it would have been “good practice” to provide it. This is an additional reason for allowing the full claim.”
“She would not have required the significant care package (and the accommodation consequent upon it) that she now requires but for the negligence”
“It sometimes occurs that the Claimant who is injured had a pre-existing injury or disability which means that he was not capable of independent existence in the first place, and the effect of the injury for which a claim is made has been to increase or enhance the Claimant’s need for care. What is the correct approach in law? In principle one would have thought that the correct approach would be to compare the Claimant’s needs after the injury for which the claim is being made with his needs before he was injured, and to make a valuation of the difference between the two. Suppose for example, prior to the index injury, the Claimant needed 4 hours of assistance a day, but since the injury, he needs 12 hours of care a day. Instinctively, the correct approach is to say that the effect of the accident has been to increase the Claimant’s needs by 8 hours a day, and the cost of the additional 8 hours a day represents the appropriate valuation of the injury which the Claimant has sustained.”
“both acts that gave rise to the damage in respect of which claims were being made by the claimant were wrongful in the sense of either being tortious or the equivalent of tortious: there were, therefore, potential compensators available to be pursued for the full loss and, potentially at any rate, opportunities for apportionment of the losses between those responsible.”
“if there remains any dispute about any matter of deduction it should, in my judgment, be resolved by reference to the way it was resolved in that case”
“73. The Defendant’s primary case is deceptively simple. It is the Claimant’s case that as a result of the accident he requires care and accommodation on a 24 hour basis. However, if the accident had not occurred the Claimant would still have required care and accommodation in any event once his father either died or was no longer able to look after him. Therefore the true loss, so the argument runs, is represented by the difference in the level of care that the Claimant would have required in any event (that is, once his father was no longer able to look after him) and the additional level of care that he requires now. According to the Defendant’s evidence, this is about 5 hours of care per day. 74. However, in my view there is a fallacy underpinning this argument. It confuses the question of the need for the care with the question of who will or would have paid for it. I agree that if the cost of the care that would have been incurred but for the accident would have been borne by the Claimant, and if the costs of the care that are now required are also to be borne by the Claimant, then it must follow that the Claimant could not make a claim for the latter without giving credit for the former (ie. the costs that have been avoided). 75. But if the costs of the “but for” care would have been met by the local authority, or some other body, then no costs would have been avoided and so there would be no costs for which to give credit. The extent to which this might or might not have been the case is a question of fact that I have to determine. ”
“In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortuous cause contributed. Hotson’s case exemplifies such a situation. If the evidence demonstrates that “but for” the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case 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, the “but for” test is modified, and the claimant will succeed.”