| NEGLIGENCE — Causation — Brain injury — Claimant exposed to lack of care in one hospital — Claimant transferred to another hospital where suffering brain injury — Whether “but for” test appropriate to establish that absent lack of care injury would not have occurred — Whether sufficient to show negligent cause materially contributing to injury
Bailey (by her father and litigation friend) v Ministry of Defence and another [2008] EWCA Civ 883; 2008] WLR (D) 270
CA: Waller, Sedley and Smith LJJ: 29 July 2008
Where medical science could not establish the probability that “but for” an act of negligence an injury would not have happened, but could establish that the contribution of the negligent cause was more than negligible, the “but for” test was modified and the claimant would succeed.
The Court of Appeal so stated when dismissing the appeal of the first defendant, the Ministry of Defence as managers of the Royal Haslar Hospital, against the decision of Foskett J on 7 December 2007 [2007] EWHC 2913 (QB) finding it liable in damages for serious brain damage suffered by the claimant, Grannia Geraldine Bailey, claiming by her father and litigation friend Maurice Bailey.
The want of care occurred during a period over11/12 January 2001; the brain damage occurred while the claimant was in the renal ward of St Mary's Hospital, Portsmouth, managed by the Portsmouth Hospitals NHS Trust, the second defendant, on 26 January 2001. The judge dismissed the claim against the second defendant and held that the MOD’s negligence in her care made a material contribution to her injury.
WALLER LJ said that the key issue for the judge was one of causation. In the cumulative cause cases such as Bonnington Castings Ltd v Wardlaw [1956] AC 613 the “but for” test was modified. There were no cases in the medical negligence context which cast any doubt on applying Wardlaw. One could not draw a distinction between medical negligence cases and others. The position in relation to cumulative cause cases could be summarised thus. If the evidence demonstrated, 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 would have failed to establish that the tortious cause contributed: see Hotson v East Berkshire Area Health Authority [1987] 1 AC 750. If the evidence demonstrated that “but for” the contribution of the tortious cause the injury would probably not have occurred, the claimant would (obviously) have discharged the burden. In a case where medical science could not establish the probability that “but for” an act of negligence the injury would not have happened, but could establish that the contribution of the negligent cause was more than negligible, the “but for” test was modified, and the claimant would succeed. The present case involved cumulative causes acting so as to create a weakness. The judge had applied the right test. The appeal would be dismissed.
SEDLEY and SMITH LJJ agreed.
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