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Bailey survives Bermuda – Material Contribution in Clinical Negligence

News | Fri 5th Feb, 2016

Tom Goodhead considers the judgment in Williams v The Bermuda Hospitals Board [2016] UKPC 4


Much to the chagrin of Defendants, the doctrine of material contribution has become firmly established in the law of Clinical Negligence ever since Bailey v MOD [2008] EWCA Civ 883. 

Indeed, on one view of Bailey, the Court of Appeal simply reaffirmed what was already trite law pursuant to Bonnington Castings v Wardlaw [1956] A.C. 613. 

In Bonnington, the Claimant contracted pneumoconiosis as a result of inhaling air containing silica dust at work. The pneumoconiosis was caused by the gradual accumulation of dust in the Claimant’s lungs. The dust consisted of “guilty dust” and “non-guilty dust” from two sources but only one of the sources amounted to a breach of duty by the Defendant. The Claimant succeeded on causation in the House of Lords by showing that the “guilty dust” had materially contributed to the indivisible injury of pneumoconiosis.

Bonnington and Bailey need to be contrasted with Hotson v East Berkshire AHA [1987] A.C. 750 and Wilsher v Essex HA [1988] A.C. 1074. 

In Hotson, whilst there was a material contribution from delay to the development of avascular necrosis, the Claimant did not succeed in recovering damages as avascular necrosis would have developed from the fall in any event.

In Wilsher, the Claimant developed retrolental fibroplasias (RLF) following a negligent failure to monitor oxygen levels after a premature birth. Unable to establish that excess oxygen had either caused or materially contributed to RLF, the Claimant failed on causation having sought to argue a material increase in risk of the RLF occurring in accordance with McGhee v National Coal Board [1973] 1 W.L.R.1.

It is against this jurisprudential background that the Privy Council decided the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4 on the 25 January, 2016.

Williams – The death of Bailey?

The judgment in Williams had been widely anticipated amongst Defendant, Clinical Negligence firms and at the Defendant Bar. The hope was that the appeal would bring Bailey down and restore the primacy of but for causation.

Indeed, the NHSLA decided to intervene in the appeal in order to assist the Privy Council in seeking to re-frame the doctrine of material contribution.

Fortunately, for victims of Clinical Negligence, the efforts of the Appellant and the NHSLA failed.

The facts of Williams and the judgments of the lower courts 

In summary, Mr Williams went to Accident and Emergency complaining of abdominal pain. He had appendicitis. A CT scan was planned but was not carried out expeditiously. Consequently, there were significant delays in diagnosing and treating Mr Williams. During the delay, Mr Williams’ appendix ruptured and sepsis incrementally ensued. The sepsis caused myocardial ischaemia.

The causation conundrum was whether the negligent delay had caused the myocardial ischaemia?

At first instance, Hellman J held that Mr Williams had failed to prove on but for principles that the complications would have been avoided.

On appeal, the Court of Appeal of Bermuda reversed Hellman J stating that the question was not whether the negligent delay was the cause of the myocardial ischaemia but whether it materially contributed to the injury? In the Court of Appeal’s judgment, it unquestionably did and the case was remitted back to Hellman J for assessment of damages.

The Privy Council’s judgment

Lord Toulson (joined by Lady Hale and Lords Clarke, Hughes and Hodge) directly applied Bonnington holding that the indivisible injury (myocardial ischaemia) was caused by sepsis of which there was “guilty” sepsis (attributable to the negligent delay) and “innocent” sepsis which had already begun irrespective of the delay.

Unlike in Hotson, it could not be said that the myocardial ischaemia would have occurred in any event. Mr Williams succeeded on causation by proving that the negligence had materially contributed to the process and therefore materially contributed to the myocardial ischaemia.

The Rejection of the Appellant’s Submissions and the widening of the Material Contribution Test

In an attack on Bailey and on the doctrine of material contribution in Clinical Negligence in general, the Appellant sought to argue that Bonnington did not assist Mr Williams. Rather, Bonnington was said to hold that in order to succeed on material contribution:

  1. There had to be a single causative agent;
  2. That a Defendant had materially contributed to the pathological process by its negligence;
  3. That the Defendant’s contribution was concurrent with any non-negligent cause;
  4. That the Defendant’s negligent contribution increased the magnitude, and not merely the risk, of suffering harm.

Further, the Appellant argued that Bailey itself had been wrongly decided and that neither the Claimant in Bailey nor Mr Williams satisfied the requisite, four stage test in Bonnington.

The Privy Council was not impressed with the Appellant’s contentions. In a judgment largely confined to the effect of Bonnington, it noted the following points which are of importance to Clinical Negligence practice:

(i) A Defendant’s material contribution does not have to be concurrent with any non-negligent cause. In Williams, as the Appellant’s QC noted, the sepsis attributable to the Defendant’s negligence developed after sepsis had already begun to develop. Rather, whilst a sequence of events can be relevant to findings of fact, causes can be either concurrent or consecutive or both.

(ii) Bailey did not involve a departure from the “but-for” test. The totality of the Claimant’s weakened condition caused the harm in Bailey and the fact that there was a concurrent, non-negligence cause of vulnerability (pancreatitis) should be seen simply as a manifestation of a Defendant taking a victim as he finds her.

(iii) The Privy Council suggested “caution” against the use of the “doubling of risk” test but acknowledged that it can sometimes be “very helpful”. 

By inference (although the Privy Council judgment is silent on the point), it would appear (at least in Clinical Negligence cases), that the Appellant’s contention that there may only be one causative agent is wrong. The Respondent submitted, wholly uncontroversially, that the law allows for multiple, cumulative causes but not multiple, possible causes (the ratio of Wilsher).

The Effect of Williams

Williams is not a grand, re-stating of the doctrine of Material Contribution in Clinical Negligence. It is a missed opportunity to provide clarity in an area of law tainted by judicial sophistry and academic onanism. What is required, either from the Supreme Court or Parliament, is a clear statement of the law.

At the moment, the law can perhaps be best stated as being that:

A Claimant will succeed in proving causation where he or she can prove, on a balance of probabilities that the Defendant’s negligence has materially contributed to an indivisible injury.

Distinctions between single agents or multiple agents and cumulative or consecutive causes add little of jurisprudential value and should be abandoned. 

The distinction between a divisible and indivisible injury is, however, important for the purposes of quantification of damages. Unsurprisingly, courts have consistently failed to give proper guidance as to what constitutes an indivisible injury. The judgment in Ministry of Defence v AB and Ors (The Atomic Test Veterans Litigation) [2010] EWCA Civ 1317 is a classic example of where a court has got it completely wrong.

At 150 in AB, the Court of Appeal held that Bailey may only be relied upon where “the disease or condition is ‘divisible’ so that an increased dose of the harmful agent worsens the disease” and that “Cancer is an indivisible condition; one either gets it or one does not. The condition is not worse because one has been exposed to a greater or smaller amount of the causative agent.”

This paragraph, unfortunately, demonstrates both a fundamental misunderstanding of cancer (the court ignores the spread of cancer by means of proliferation of cells) and what in fact the injury was in Bailey (the brain damage not the weakened state).

Following Williams, the application of Bailey in AB is plainly incorrect.

What must be proven in order to succeed in a Material Contribution case?

The Claimants in Wilsher and in The Atomic Test Veterans Litigation failed because they could not even prove, on a balance of probabilities, a material contribution to injury.

A material increase in risk of an injury (as in The Atomic Test Veterans Litigation) is unlikely to be enough to establish causation given the court’s scepticism in Williams and the judiciary’s unwillingness to extend the Fairchild exception to Clinical Negligence cases.

In order to succeed a Claimant must prove, on a balance of probabilities, a material contribution to the injury. Causation will likely have to be established by direct, medical evidence and epidemiological data will be helpful where it underpins medical evidence.

By way of example, see the approach taken by Nigel Poole QC and I in the case of Maytum v Abertawe Bro Morgannwg University Health board.

In Maytum (which settled successfully during day 4 of trial), we sought to argue that the Claimant’s relapse of cancer (with the development of overt metastases) was materially contributed to by a delay in treatment. During the negligent delay, the cancer had continued to metastasise and spread. Epidemiological evidence in respect of tumour growth rates/success of chemotherapy treatments underpinned, but did not constitute the whole, of the causation argument.

Such an approach to arguing material contribution is not limited to cancer cases. Indeed, cases such as Popple v Birmingham Women’s NHS Foundation Trust [2012] EWCA Civ 1628,  Canning-Kishver v Sandwell & West Birmingham Hospitals NHS Trust [2008] EWHC 2384 (QB) and Leigh v London Ambulance Service NHS Trust [2014] EWHC 286 (QB) demonstrate the successful application of the doctrine of material contribution post-Bailey.

Defendants are obviously concerned with the proliferation of material contribution cases in Clinical Negligence litigation. In Reaney v University Hospital of North Staffordshire NHS Trust & Anr [2015] EWCA Civ 1119, the Defendant trust succeeded in overturning Foskett J’s extension of the Bailey principle to issues of quantification. At first instance, Foskett J appears to have treated paraplegia and pressure sores as one, whole indivisible injury rather than treating them as separate. Consequentially, he found the Defendant liable for the Claimant’s full care and assistance needs despite her pre-existing, non-negligent condition.

The outcome of Reaney was unsurprising but there appears a tension between the Privy Council and the Court of Appeal in respect of the application of the eggshell skull rule. 

This tension is inevitable, of course, because it is plainly too much to ask for the Higher Courts to provide clarity in respect of the doctrine of material contribution.

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