Dear colleagues,

 

In Williams v Bermuda Hospitals Board at https://www.jcpc.uk/cases/docs/jcpc-2014-0110-judgment.pdf, the PC grapples with the thorny issue of material contribution to injury.

 

The acknowledgement that the Court of Appeal in Bailey v MOD was wrong to describe material contribution to injury as an exception to the But For test is welcome, as is the recommendation that the doubling of the risk test should only ever be used with caution.

 

The dismissal of the Bermuda Hospital Board’s appeal , however, on facts which did not require a material contribution to injury analysis is not good news, particularly for medical practitioners and their insurers.  An orthodox But For analysis along Barnett lines should have been applied, under which a different result would have been reached – the evidence (patchy thought it was) suggested that the claimant’s fate was sealed before the defendant contributed to the ongoing risk.

 

Best wishes,

 

Sarah

 

Sarah Green

Lord Hoffmann Fellow in Law

St Hilda's College

Oxford

OX4 1DY

 

sarah.green@law.ox.ac.uk

 

01865 286661

 

https://www.law.ox.ac.uk/people/sarah-green