Date: Wed, 6 Aug 2008 15:04

From: Michael Jones

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

Dear Neil,

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.

I do not think that the trial judge made these specific findings of fact.

What the judge said at [61] ([33] of the CA judgment) was: "I cannot say whether the contribution made by this component was more or less than that made by the pancreatititis and it follows that I cannot say whether the contribution made by the pancreatitis was greater or smaller than the contribution of the other component. All I can say is that the natural inference is that each contributed materially to the overall weakness and it was the overall weakness that caused the aspiration".

As I read that, he is not saying that, on a balance of probabilities, "if we took [the negligence] out of the chain of events, the harm would not have occurred." Indeed, the CA (at [36]) actually say: "If the claimant could have established on the balance of probabilities that 'but for' the negligence of the defendant the injury would not have occurred, she would have been entitled to succeed. That however was not the conclusion of the judge in this case; all he felt able to find was that the negligence made a material contribution to the injury suffered, i.e. a contribution that was more than negligible".

If the harm would not have occurred in the absence of the negligence, then of course the negligence is a "but for" cause. You wouldn't need the "material contribution" test if that were the case. Going back to Bonnington, the whole point of the case was that the claimant could not establish that but for the breach of duty he would not have developed pneumoconiosis. By far the larger proportion of the dust in the atmosphere came from the innocent source, and in the absence of the innocent source, he could not prove that he would have developed the disease (because it has to get to a certain threshold level before the disease kicks in). All he could prove was that he had probably inhaled some of the dust from the guilty source, and that had probably contributed to his overall condition (given that pneumoconiosis is a cumulative condition - the more you inhale the worse the condition).

So what the judge was doing in Bailey was essentially the same as in Bonnington. What we know from the evidence was that the damage was caused by the inability to respond appropriately to the vomiting; that was caused by the claimant's weakened state; the claimant's weakened state was caused by (A) defendant's negligence and (B) pancreatitis. What we don't know is whether in the absence of (A) she would still have been so weak that she could not respond appropriately; and we also don't know whether in the absence of (B) she would still have been so weak that she could not respond appropriately. But it doesn't matter that we don't know this, because all we need to know from a legal perspective (applying Bonnington) is that (A) made a material contribution to her inability to respond appropriately, and therefore to the damage.

It is true that, to some extent, this privileges our ignorance, since if the evidence was sufficient to enable us to conclude that "in the absence of (A) she would still have been so weak that she could not respond appropriately" the claim will fail on the basis of lack of but for causation, and Bonnington will not come into play. That is the policy judgment underlying cases such as Bonnington (and Fairchild) - who should have to live with the consequences of our scientific ignorance about precise causal mechanisms (which tends to be a problem mainly in industrial disease and medical negligence cases)? Some say the claimant has simply failed to prove causation, others say that this is placing an impossible burden on the claimant and the causation test should be modified to address the perceived unfairness. Others think that fairness lies in proportionate liability (Barker v Corus; Holtby v Brigham).

You pays your money and takes your choice ...

Kind regards,
Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool  
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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--------------------------------------------------------------------------------
From: Neil Foster   
Sent: Wed 06/08/2008 00:07 
To: Sarah Green; Jones, Michael; DAVID CHEIFETZ 
Subject: RE: 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.

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