England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
MR JUSTICE FOSKETT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2015

Master of the Rolls:

Outline of the case

1. Mrs Reaney is now aged 68. In December 2008, she was admitted to Stafford Hospital and transferred to the North Staffordshire Royal Infirmary where she was diagnosed as suffering from transverse myelitis. She failed to recover and became paralysed below the mid-thoracic level. She was classified as a "T7 paraplegic". Sadly, this condition is permanent. It was common ground at trial that it was not caused by negligence. Her resultant needs would have been met initially by the provision of a few hours care each week rising to 31.5 hours care after the age of 75. With the benefit of such care, Mrs Reaney could have led a largely independent life.
2. During an extended period of hospitalisation, she developed a number of deep pressure sores (grade 4) with consequent osteomyelitis (infection of the bone marrow), hip dislocation, serious contractures of the lower limbs and increased lower limb spasticity. Her seating posture was permanently damaged by the hip dislocation so that she was unable to use a standard wheelchair safely. She was left with a large area of vulnerable skin on the sacrum and buttocks where the pressure sores had healed, but the skin was thin and tethered to the bone beneath.
3. Mrs Reaney started these proceedings alleging negligence in relation to the pressure sores. The defendants admitted liability and the only live issues in the litigation were causation and the quantification of damages. The issues at the trial before Foskett J included the question how far the pressure sores and their consequences had made Mrs Reaney's position worse than it would have been but for the defendants' negligence. In particular, did the defendants cause (i) all of Mrs Reaney's care needs resulting from the pressure sores and their consequences (as the judge held) or (ii) those needs less the needs that she would have had but for the negligence (as the defendants contended)?

The judge's findings of fact

4. In his principal judgment given on 19 September 2014, the judge found that, but for the pressure sores and their consequences, Mrs Reaney would have been able to spend her waking hours out of bed in a standard wheelchair which she would have been able to self-propel. She could have undertaken a few basic household tasks. She would have been able to get out and about, doubtless with family support and supervision. She would inevitably have been doubly incontinent, but her bowel management would have been better than it now is and she would not have required a urethral catheter which she now requires.
5. As for Mrs Reaney's care requirements but for the negligence, the judge appears to have accepted the evidence of Mr Gardner (her consultant in spinal cord injuries) who said:

"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."

6. At para 36, the judge said that her care requirements in the "but for scenario", apart from the limited assistance of family members, would have been provided by the local authority. Initially, this would probably have amounted to 7 hours care per week. Until the age of 70 she would have been able to transfer into and out of a wheelchair independently. Thereafter, she would have needed some assistance from a carer before she required hoisted transfers from the age of 75. The Claimant's care needs would have gradually increased until she was receiving the amount of care that she is now receiving (i.e. 31.5 hours per week), only one carer being necessary until hoisting (which requires two carers) became necessary at about the age of 75.
7. At paras 44 to 52, the judge set out his findings as to Mrs Reaney's care needs as a result of the defendants' negligence. He said:

"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." This is acknowledged to be an area where there is a risk of the skin breaking down and a new pressure sore developing. Mr Goldin says that "preventative measures to avoid breakdown of the affected areas should continue to be used for the rest of the patient's life." He agrees with Mr Gardner that the depressed scars are vulnerable to a shearing injury which could arise from inexpert handling and that two carers should be "available at all times to achieve optimum safety when repositioning her".

45. That area, and any area where a pressure sore exists or develops (see paragraph 47 below), is also vulnerable to the effect of urine and/or faeces in which the Claimant may inevitably (but unknowingly, at least for a time) be sitting following an unpredictable and (initially) undetected bowel movement or passage of urine. It was not disputed that this kind of situation needs prompt attention (rather than simply awaiting the arrival of the local authority carers), as indeed does the situation where the Claimant experiences a spasm that moves her from the optimum position. (Her vulnerability to spasms is greater now than it would have been in the "but for scenario".)"

8. As he put it at para 49, "the reality is that the need for 24 hour care by two carers cannot truly be disputed". Two waking carers at night will be required whilst Mrs Reaney remains in her present accommodation. After her move to more suitable accommodation, the care can be provided by one sleeping and one waking carer.
9. At para 68, the judge summarised the "net effect" of his conclusions concerning Mrs Reaney's present and future needs compared with those that were going to arise in any event by reason of her pre-existing condition. He said:

"(i) From about six months after her discharge from hospital in October 2009 (which, for convenience, I will take as 1 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….."

10. In his supplementary judgment which was delivered on 31 October 2014 dealing with the assessment of damages, the judge accepted the evidence of Ms Knight (the claimant's expert) that, but for the negligence, she would have required 6 sessions of physiotherapy a year up to the age of 70 and 12 sessions a year after the age of 70. As a result of the negligence, she needed 18 sessions of physiotherapy a year up to the age of 70 and 24 sessions a year thereafter.

The judge's treatment of the central question

11. "70. I should say at the outset that whilst I accept the general thrust of Mr Feeny's 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, I see this 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. The principle is neatly summed up in footnote 94 to paragraph 2-31 in Clerk & Lindsell on Torts, 20th Ed., which reminds the reader that "the fact that the defendant's breach of duty has worsened an existing condition may lead to a higher assessment of the loss, since the consequences of the impairment may be greater" and continues to say "[thus], it is much worse to be totally deaf than half deaf, and the additional hearing loss (from half to totally deaf) causes greater damage than the initial hearing loss (from full hearing to half deaf)." The footnote refers to Paris v Stepney Borough Council [1951] AC 367 from which is derived the proposition that "loss of an eye is significantly worse for a one-eyed man than a man with full eyesight." It is not difficult to build up a list of similar comparisons between the "but for scenario" and the "as it exists scenario" in the present case.

71. In my judgment, on the evidence, the Defendants' negligence has 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 requires but for the negligence. Had I had any doubts in this case about the issue of causation in the "but for" sense, I would have been inclined to find that the Defendants had "materially contributed" to the condition that had led to the need for the 24/7 care of the nature discussed earlier in this judgment and that the lack of any joint or concurrent tortfeasor as a potential direct compensator (and/or from whom a contribution might be sought by the Defendants) is no answer to a full claim against the Defendants: cf. Bailey v Ministry of Defence [2007] EWHC 2913 (QB) as upheld in the Court of Appeal: [2009] 1 WLR 1052. However, as I have indicated, I consider that causation is established by what might be termed the more conventional route.

72. I remain unclear about the extent to which Mr Feeny asserts that any credit should be given against the value of the claim assessed on the basis I have indicated for the notional cost of meeting the Claimant's needs in the "but for scenario", but for present purposes all I believe I need to say is that I respectfully agree with the sensible, compassionate and principled approach to this kind of issue taken by Edwards-Stuart J in Sklair (see paragraph 67 above). 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."

11. He made certain findings on consequential matters. The only one to which I should refer is his assessment of damages for pain, suffering and loss of amenity. Having noted the bracket of general damages for paraplegia identified in the Judicial College Guidelines, he reduced the figure to £115,000 in view of "the materially worse position that the consequences of the admitted negligence have led to" (para 78). He adjourned consideration of the other heads of loss that were claimed.
12. He dealt with these in his supplemental judgment. He assessed the future care costs as £2,194,883.29. He applied the approach that he had described in paras 70 to 72 of his main judgment to the assessment of the cost of transport and physiotherapy. In relation to the latter, he said:

"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."

Discussion

13. The critical conclusion of the judge in his principal judgment is to be found in the second sentence of para 71: "She would not have required the significant care package (and the accommodation consequent upon it) that she now requires but for the negligence". In para 21 of the supplemental judgment, he said that the requirement of 24/7 care from two carers for the rest of her life was "materially different from what she would have required but for the development of the pressure sores and their sequelae". This finding led him to conclude that she was entitled to full compensation of all her care, physiotherapy and accommodation costs.
14. Mr Westcott QC submits that the judge should have awarded her the cost of meeting her needs but only to the extent that the needs were increased as a result of the negligence. This is in line with the approach set out in Kemp & Kemp (136 Release), Chapter 3, Chapter 13-003:

"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."

15. This principle is illustrated in a number of cases. In Steel v Joy [2004] 1 WLR 3002, [2004] EWCA Civ 576, the claimant suffered from a congenital spinal stenosis the symptoms of which, as a result of the first accident, were accelerated by 7 to 10 years. The second accident, which was caused by the defendants' negligence, would also have accelerated the claimant's symptoms by 7 to 10 years. It also caused a flare up of the condition for a period of between 3 and 6 months. This court held that the defendants were not liable for the acceleration of the symptoms, and were only liable for the flare up of the condition. Reference was made to Performance Cars Ltd v Abraham [1962] 1 QB 33 and to dicta of Lord Reid and Lord Pearson in Baker v Willoughby [1970] AC 467 at pp 493G-H and 405 F-G respectively.
16. At para 70 of the judgment in Steel, the court said;

"In our judgment, Performance Cars is still good law. It has been frequently referred to in the textbooks and, so far as we know, without disapproval. As a matter of logic and common sense, it is clearly correct. We do not consider that it produces an unjust result. The claimant is entitled to recover damages from the first defendant for the losses inflicted by him; and from the second defendant for any additional losses inflicted by him. It is true that, if the first defendant is not before the court or is insolvent, the claimant will not be fully compensated for all the losses that he has suffered as a result of the two accidents. But that is not a reason for making each defendant liable for the total loss. In Baker, the issue was whether the tortfeasor who had caused the first injury was liable for its consequences after they had arguably become merged in the consequences of the second injury. In the present case, the question is whether the second tortfeasor is responsible for the consequences of the first injury. To that question, the answer can only be: no. It is true that, but for the first accident, the second accident would have caused the same damage as the first accident. But that is irrelevant. Since the claimant had already suffered that damage, the second defendant did not cause it. This is not a case of concurrent tortfeasors."

17. At para 70 of his judgment in the present case, Foskett J said that, if a tortfeasor makes the victim's current damaged condition worse, "then he (the tortfeasor) must make full compensation for that worsened condition". If by that the judge 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.
18. During the course of oral argument, it became clear that there was no real difference between the parties as to the correct approach to causation of loss in cases such as the present. As Lord Pearson put it in Baker's case, the defendant is entitled to take the claimant as it finds her. It did not injure a previously fit and able-bodied person. It injured a woman who was a T7 paraplegic and who, as a result of her condition, already had considerable care and other needs. It was (rightly) common ground that if the defendants' negligence 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.
19. Mr Moon QC submits that the judge 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. Accordingly, there is no basis for disturbing his overall conclusion on the issue of causation.
20. It is necessary to return to the first two sentences of para 71. In the first sentence, the judge said that the negligence had made Mrs Reaney's position "materially and significantly worse than it would have been but for that negligence". In the second sentence, he said that she would not have required "the significant care package (and the accommodation consequent upon it) that she now requires but for the negligence". In my view neither of these sentences supports Mr Moon's submission. They do not state or even imply 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. They are 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 (i.e. what was described in argument as "more of the same"). Mr Moon rightly accepts 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 was attributable to the negligence.
21. But Mr Moon submits that it is wrong to focus exclusively on para 71 of the judgment. He says that there are other passages which show that the judge must be taken to have decided that the care needs caused by the negligence were different in kind from what Mrs Reaney would have required but for the negligence.
22. He refers to para 32 and the finding that, but for the negligence, Mrs Reaney would have enjoyed a much better quality of life than she is now able to enjoy. Her condition is now very much worse and, he submits, this fact alone indicates that her care needs are qualitatively different. He places particular emphasis on paras 44 and 45 and the fact that the depressed scars are vulnerable to shearing injury which could arise from inexpert handling. He says that the expertise required of the carers is different from that of occasional carers who would have sufficed if Mrs Reaney had not suffered the bedsores and their consequences. He relies on the fact that at para 20 of her witness statement, Mrs Reaney says that, when she was in hospital before the time when she sustained the bedsores, "sometimes the carers who they send are young girls who don't really know what they're doing" and that she had complained about the standard of care. He suggests that this indicates that the quality of carers she would have required but for the negligence was less specialist than the quality of carers that she now requires.
23. Finally, in relation to the need for physiotherapy, he relies on the unchallenged evidence of Ms Knight as showing that, because of the deformities and pressure areas, Mrs Reaney needed care staff trained ideally by a neurological physiotherapist (transcript 16 July 2014 p 82). Mr Moon also relies on the report of Ms Knight dated 29 October 2012 to show that the physiotherapy regime required as a result of the negligence is different in kind from that which would have been required but for the negligence. But for the negligence, she would have required "occasional bursts of physiotherapy….to review her gym and home programmes". As a result of the negligence, "rather than being independent in a stretching and exercise programme as a T7 paraplegic, she will always need considerable assistance from others to undertake this exercise programme. It is not appropriate or possible for her to attend a gym for exercise": see paras 5.1.3 and 5.2.2 of Ms Knight's report dated 29 October 2012. Because she is now vulnerable to chest infection, she will also need bursts of physiotherapy to assist with breathing exercises and clearance of secretions.
24. Mr Moon has valiantly attempted to supplement the sparse finding of the judge in the first two sentences of para 71 by reference to other parts of the judgment and the evidence. If the judge had made a reasoned finding that the care package required as a result of the negligence was different in kind from that which Mrs Reaney would have required but for the negligence, it might have been difficult for Mr Westcott to challenge it. But in my view the judge did not do so. The undoubted fact that Mrs Reaney's quality of life is now markedly worse than it would have been but for the negligence says nothing about whether the care that she now needs is qualitatively or quantitatively different from what she would have needed but for the negligence. As for the carers themselves, the judge made no finding that Mrs Reaney now requires specialist carers who have skills which are not possessed by carers of the kind who would have sufficed to satisfy her pre-existing needs. I accept that there was evidence that her needs for physiotherapy were somewhat different in character as a result of the negligence. But the judge made no finding to this effect in paras 24 and 25 of his supplemental judgment. I do not consider that it is for this court to seek to fill the gap.
25. It may be that the significance of the difference between needs which are quantitatively different and those which are qualitatively different was not spelt out during the course of the trial. But in my judgment, the judge's conclusion that all of Mrs Reaney's care and physiotherapy needs were caused by the defendants' negligence cannot stand. The same applies to the judge's decision in relation to accommodation, equipment, transport and holidays.

Other points

26. A number of other points were mentioned by the judge which are potentially important and on which I wish to comment.
27. First, at para 60 he noted that a feature of cases such as Performance Cars, Steel and Baker which distinguished them from the present case "at least for practical purposes" was that in all of them:

"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."

28. He added that whether it distinguished those cases from the present case from a legal point of view was "a matter for consideration". In fact, the judge then moved away from this point and did not give it further consideration. In my view, whether a claimant can recover compensation for loss caused by another person is irrelevant. There may be a number of reasons why a claimant cannot recover compensation for loss caused by another person. The other person may not be liable in negligence or may be insolvent or may have disappeared or may simply be someone from whom the claimant does not wish to claim compensation. None of this is relevant to the question whether the claimant has suffered loss as a result of the negligence of a person who has caused the loss. If a person has caused the loss, he is liable to compensate the claimant for it. If he has not, then he is not liable.
29. Secondly, I need to say something about the decision of Edwards-Stuart J in Sklair v Haycock [2009] EWHC 3328 (QB) to which the judge referred at para 72 of his judgment. The judge said: "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" (emphasis added). The reference to "deduction" needs to be explained. For this purpose it is necessary to consider Sklair in a little detail.
30. In that case, the claimant suffered from Asperger's syndrome. He lived an essentially independent life, but required supervision from his father. He was then injured in a road accident caused by the defendant's negligence. The accident caused physical injuries which affected his dexterity and mobility and had a significant adverse effect on his psychological well-being so that he required care for 24 hours a day. Edwards-Stuart J said:

"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. "

31. I accept the submission of Mr Westcott that this decision can be explained and supported on the basis that the defendant had caused the loss represented by the need for a 24 hour care regime providing support to Mr Sklair in all aspects of his life. In other words, the decision can be justified as based on an issue of causation, although that is not how it was analysed by the judge. The care regime required after the accident could properly be described as qualitatively different from that which had been previously 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.
32. It follows that the argument summarised by Edwards-Stuart J at para 73 and rejected at para 74 of his judgment was correct. It focused on the causation question and impliedly asked whether the care required as a result of the accident was qualitatively different from that which would have been required but for the accident. It was wrong to describe this approach as being underpinned by a fallacy. With respect to him, it seems to me that it was Edwards-Stuart J who confused the question of need for the care (a causation question and the relevant focus of the enquiry) with the question of who will or would have paid for it (which could only be relevant to the quantification of damages). The question of "giving credit" for the costs that would have been avoided is irrelevant to the question of causation. Since Foskett J was not concerned with the quantification of care costs in his first judgment, it was unhelpful to raise the issue of giving credit. I should add that it is unclear to me whether, in agreeing at para 72 of his judgment with the approach of Edwards-Stuart J, Foskett J was in fact relying on it as additional support for his conclusion on causation. In so far as he did rely on it, I consider that he was wrong to do so.
33. Thirdly, I should also refer to Bailey v Ministry of Defence [2007] EWHC 2913 (QB) as upheld in the Court of Appeal at [2009] 1 WLR 1052. I do so because at para 71 the judge said that, if he had had any doubts about the issue of causation "in the 'but for' sense", he would have "been inclined to find that the Defendants had 'materially contributed' to the condition that led to the need for the 24/7 care of the nature discussed earlier in this judgment." I accept the submission of Mr Westcott that a conclusion based on the principles in Bailey cannot be supported in this case.
34. At para 46, Waller LJ said:

"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."

35. This was an accurate distillation of the law as set out in cases such as Bonnington Castings Ltd v Wardlaw [1956] AC 623 and Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. In the present case, there was no doubt about Mrs Reaney's medical condition before the defendants' 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's case. The issue was as to the cause of the needs to which these injuries gave rise. The concept of material contribution had no part to play in resolving that issue.

Conclusion

36. For the reasons given above, this appeal must be allowed. The case should be remitted to Foskett J for him to assess damages in respect of the claimant's heads of loss in the light of this judgment. I would invite counsel to agree the terms of an order which give effect to this decision.

Lord Justice Tomlinson:

37. I agree.

Lord Justice Lewison:

38. I also agree.