Date: Tue, 5 Aug 2008 16:37

From: Robert Stevens

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

The HL in Bonnington Castings made no apportionment because the only question before them was one of liability, not quantification. When the question of quantification has arisen in similar cases, an apportionment has, rightly, been made (e.g. Holtby v Brigham [2000] 3 All ER 421).

Rob

I agree with Richard, Michael, and a number of other previous posters, that Bailey seems to me a clear case of material contribution to an injury (or indeed a NESS cause, although the British courts still seem unwilling to go down the road of recognising that test) and thus causation of the actual real world injury (rather than loss of a chance) is established.

If I may add a further point - we have nothing from the Court of Appeal (or the trial judge) in Bailey on the damages apportionment issue. The House of Lords in Bonnington awarded full damages in respect of only one of several materially contributing causes to a divisible injury. That has never seemed equitable to me. The Scottish courts did the same again not so long ago in Wright v Stoddart International plc [2007] CSOH 138, an approach I criticised recently in the 2008 Edin LR (at pp 99-105). I assume that the reason we have nothing on apportionment in Bailey is because hypoxic brain damage is treated as an indivisible injury, so that no ascertainable portion of it can be attributed to the negligence of the first defendant. The claimant gets full damages because no division of the injury, and thus no apportionment, is possible. If that's not the case, and the injury is divisible, then I believe an apportionment should be made in such a case.

--
Robert Stevens
Professor of Commercial Law
University College London

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