Date: Fri, 1 Aug 2008 15:31

From: Sarah Green

Subject: Factual Causation Follies - Bailey v The Ministry of Defence & Anor (EWCA)

Dear Colleagues,

It seems to me to be another instance of the Wardlaw line of cases being confused with the McGhee/Fairchild approach. The latter principle has nothing whatsoever to do with the facts of Bailey. Despite Lord Reid’s assertion in McGhee that he could “not accept the distinction drawn … between materially increasing the risk that the disease will occur and making a material contribution to its occurrence”, the distinction is, with respect, one of considerable significance. It explains, for instance, precisely why the McGhee/Fairchild situations required an exceptional, modified causal approach for which, as Neil points out, there was simply no need in Wardlaw or in Bailey.

Regards,
Sarah

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From: Neil Foster  
Sent: 01 August 2008 02:23
Subject: Re: Factual Causation Follies - Bailey v The Ministry of Defence & Anor (EWCA)

Dear David et al

Bailey is a helpful decision because it identifies for me where the "rot" started in this area. In my view it comes in the quote at [14] from Lord Rodger in the House of Lords' decision in Fairchild. Lord Rodger with respect gets it wrong when he says that Wardlaw is not a case of "but for" causation. To my mind Lord Reid in Wardlaw is clear - the two types of dust both contributed to the disease (see the quote at [16] in Bailey). Since A and B both contributed, even if A is "slight", then it just is the case that "but for" A, the result would not have eventuated. So there is no clash between Wardlaw "material contribution" and "but for".

So when Waller LJ says in Bailey at [36] that "material contribution" is "not an application of the but for test" this is understandable, given his position in the judicial hierarchy, but it is still wrong. And when in [39] his Lordship poses the final two questions there - "cumulative cause" or "but for", the answer is - Yes to both. And I think that to read Lord Keith as saying something else is clutching at straws.

Given all that it is interesting that as I read the case there was no need to go for some "modification" of "but for". As far as I can see the judge found that the negligence of the doctor in failing to properly resuscitate the plaintiff was one of the factors which led to her subsequent weakness and hence to her brain damage. It was not the "main" cause, but it was a part of the chain of events. His finding at [33] that each of the later pancreatitis and the initial negligence "contributed materially to the overall weakness and it was the overall weakness that caused the aspiration" is perfectly adequate for an entirely orthodox finding of causation.

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