Date: Wed, 6 Aug 2008 00:07

From: Neil Foster

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

Dear Michael

I agree with you, but I would like to clarify a point of terminology. You say

She could not prove but for causation, because she could not prove on a balance of probabilities that in the absence of the pancreatitis she would nonetheless have been so weakened by the defendant's negligence that she would have been "unable to respond naturally to her vomit".

I don't think this can be right. As I read she could prove "but for" causation. The negligence and the pancreatitis both "materially contributed" to the harm. True, the pancreatitis was the "major" contributor, and if we took it out the harm would not have occurred. But as I read the case the same is true of the negligence: if we took it out of the chain of events, the harm would not have occurred. If A and B materially contributed to harm, then "but for" A, the harm would not have occurred. The negligence was a necessary element in the sufficient set of events that led to the harm.

I concede (as I said in my previous post) that this is contrary to what Lord Rodger said in Fairchild, quoted at [14] in Bailey. But with the greatest of respect I think his Lordship was wrong.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law 
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University of Newcastle
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>>> "Jones, Michael" 5/08/08 10:40 >>>

Dear All,

At the risk of repeating what others have said, and/or adding to the confusion:

Bailey was not a Fairchild/McGhee/Hotson/Gregg case at all. The claimant suffered brain damage because she was in a "weakened state which led to her being unable to respond naturally to her vomit" ([32]). What caused her weakened state? Both the defendant’s negligence and the (non-negligent) pancreatitis (there are specific findings of fact to support this). She could not prove but for causation, because she could not prove on a balance of probabilities that in the absence of the pancreatitis she would nonetheless have been so weakened by the defendant’s negligence that she would have been “unable to respond naturally to her vomit”. But she does not have to prove that the negligence was the sole or even the main cause of her weakened state. She only has to prove that it made a material contribution, applying Bonnington Castings v Wardlaw. There was ample evidence, and consequent findings of fact, to support the conclusion that the negligence had materially contributed to her weakened state. There was no need to draw “robust and pragmatic” inferences, or rely on notions of “increased risk”. This was as straightforward an application of Bonnington Castings to a case of medical negligence as you are ever likely to find.

If you don’t like the outcome, it is probably because you don’t like Bonnington Castings.

It was counsel for the defendant in Bailey who was arguing that it was a Fairchild/Hotson/Gregg case, and suggesting that on that the basis the claim should fail. Clever forensic tactics, but a complete red herring, which ultimately fooled neither the judge nor the CA.

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