Bailey v The Ministry of Defence [2008] EWCA Civ 883 (29 July 2008)

A woman suffered brain damage after choking due to weakness. This weakness was caused by both non-negligent pancreatitis and negligent post-operative care. The court held the hospital liable as its negligence had materially contributed to her weakened state and subsequent injury.

Facts

The claimant, Mrs Bailey, was admitted to a hospital for a gallstone procedure. Post-operatively, she developed acute pancreatitis, which was not a result of any negligence. Her condition deteriorated, requiring a transfer to an intensive care unit at a hospital run by the second defendant, the Ministry of Defence (MoD). At the MoD hospital, the trial judge found there was a negligent lack of care. As a result of this negligence and her underlying pancreatitis, she became extremely weak. After being transferred back to the original hospital, she aspirated her vomit, leading to a cardiac arrest and consequent hypoxic brain damage. The trial judge found that her weakness was the cause of her inability to clear her airways, and this weakness was the result of the cumulative effects of both the non-negligent pancreatitis and the negligent care provided by the MoD.

Issues

The central legal issue was causation. The Court of Appeal had to determine the correct legal test for causation in a situation where the claimant’s injury resulted from a combination of a tortious cause (the negligent care) and a non-tortious cause (the pancreatitis). Specifically, the court considered whether it was appropriate to apply the ‘material contribution’ principle, where the tortious cause made a more than negligible contribution to a single, indivisible outcome (the weakness), thereby relaxing the traditional ‘but for’ test.

Judgment

The Court of Appeal unanimously dismissed the appeal, upholding the trial judge’s finding of liability against the Ministry of Defence. Lord Justice Waller, giving the leading judgment, affirmed that the ‘material contribution’ test was applicable in this scenario.

Reasoning of the Court

The court reviewed key precedents on causation, including Bonnington Castings Ltd v Wardlaw and distinguished the present case from Wilsher v Essex AHA. In Wilsher, there were multiple discrete, alternative factors that could have caused the harm, whereas in Mrs Bailey’s case, the factors (pancreatitis and negligent care) were not alternative causes but acted cumulatively to cause the weakness that resulted in the final injury. Waller LJ held that where medical science cannot definitively establish that the injury would not have occurred ‘but for’ the defendant’s negligence, but can show that the negligence contributed materially to the harm, the law can modify the test for causation. He summarised the applicable principle:

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.

The court concluded that since the negligent care had made a contribution to the weakness which was more than negligible, it was a legal cause of the brain damage, and the claimant was therefore entitled to succeed.

Implications

The decision in Bailey v MoD is significant for its clarification of the law of causation in clinical negligence and tort generally. It confirms that the ‘material contribution to injury’ test can be applied where multiple cumulative factors (some tortious, some not) lead to a single indivisible injury. This provides an important avenue for claimants in complex cases where the strict ‘but for’ test is difficult or impossible to satisfy due to scientific uncertainty. The judgment establishes that if a breach of duty materially contributes to the claimant’s weakened state which leads to the ultimate harm, causation can be established even if other, non-tortious factors also contributed.

Verdict: The appeal was dismissed; the judgment in favour of the claimant was upheld.

Source: Bailey v The Ministry of Defence & Anor [2008] EWCA Civ 883 (29 July 2008)