Bailey v Ministry of Defence : A case for clarity in causation

The appeal in the recent case of Bailey v Ministry of Defence and another 1 raises some interesting
issues in relation to the causal concept of ‘material contribution to harm’ and its applicability in
the context of medical negligence. The Court of Appeal considered that the ‘material
contribution to harm’ test of causation is a departure from the ‘but for’ test but that it is a
departure the court is entitled to make in medical negligence cases in the same way as in cases
involving any other type of negligence. In applying this to the facts of the case the Court appears
to have achieved the correct result in concluding that causation was established on the basis that
the negligence made a material contribution to the harm. Whilst the outcome seems to be
correct, the Court’s conclusion that material contribution to harm is a departure from ‘but for’
causation is not convincing. This may be understandable given that the task of resolving a
concrete case of causation is a daunting one due to the vast body of recent case law concerning
causation. This case therefore highlights the need for greater clarity and analysis in courts’
approaches to causal problems. In particular, in light of the recent focus on the development of
risk-based conceptions of causation, this case is a welcome reminder that less complex causal
chains do in fact exist. In addition to this, Waller LJ’s remark that ‘one cannot draw a distinction
between medical negligence cases and others’ is deserving of particular attention. It will be
argued that this seemingly broad statement can and should be limited to the specific context of
this case and that very strong reasons exist for disregarding this view in certain kinds of medical
negligence case.

The satisfaction of ‘material contribution to harm’ on the facts of the case

The patient initially underwent a procedure on 9th January 2001 at the Royal Haslar Hospital,
managed by the Ministry of Defence. It was argued that their negligence lay in the failure to
properly resuscitate the patient after this procedure was carried out. Her condition subsequently
deteriorated and she had to undergo a further three procedures between the 15th and 19th
January, whereas it was argued she would only have needed one further procedure had she been
properly resuscitated after the first. In addition to this the patient developed pancreatitis on 12th
January but this development was a natural complication and not attributable to the negligence
of the hospital. Finally on 26th January the patient inhaled her vomit leading to cardiac arrest

1 [2008] EWCA Civ 883

which resulted in the claimant suffering brain damage. It was held at first instance that if the
patient had been properly resuscitated after the first procedure she would have avoided some, or
possibly all, of the subsequent procedures. It was considered that these procedures, as well as the
non-negligent pancreatitis, had both caused the patient to become weakened and that this
weakness caused her to aspirate her vomit. Therefore at first instance Foskett J concluded that,
since both the non-negligent pancreatitis and the negligent failure to resuscitate had materially
contributed to her weakness, the causal link between the negligence and the harm had been
established. The Court of Appeal, concluding that it was clearly the patient’s weakened state that
caused her inability to respond naturally to her vomit 2, then addressed the remaining question as
to what caused her weakened state. On the facts, Waller LJ (with whose opinion Sedley and
Smith LJJ concurred) upheld the judge’s finding that the negligence led to weakness which still
persisted at the time of the aspiration, and accepted his conclusion that although he could not
say ‘whether the contribution made by this component was more or less than that made by the
pancreatitis…the natural inference is that each contributed materially to the overall weakness and
it was the overall weakness that caused the aspiration’. 3 The relevant question of law was
whether, to establish a causal link, it was sufficient to show that the negligence had made a
material (that is, more than negligible) contribution to the injury. There were two aspects to this
question, both of which will be examined in closer detail. Firstly, is the ‘material contribution to
harm’ test a departure from the traditional ‘but for’ test of causation? Secondly, if it is held to be
a departure from the ‘but for’ test, is the court entitled to make this departure in cases involving
medical negligence?

The relationship between ‘but for’ causation and ‘material contribution to harm’

Guided by Lord Rodger’s speech in Fairchild 4, Waller LJ concluded that ‘material contribution to
harm’ is not an application of the ‘but for’ test. It appears, however, that Lord Rodger lost sight
of important characteristics of the facts of Wardlaw 5. So, whilst in this case the Court may have
felt bound by Lord Rodger’s speech it is to be hoped that, when an opportunity arises to directly
address the issue, the House of Lords will undertake a more in depth analysis of the concept of
material contribution to harm and reconsider this position. Lord Rodger held that ‘[s]ince it is
enough that the defendant's wrongful act materially contributed to the claimant's injury, the law
is not applying the causa sine qua non or ‘but for’ test of causation. In Wardlaw, for instance, the

2 n.1 above, para 32

3 n.1 above, para 33
4 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32
5 Bonnington Castings Ltd v Wardlaw [1956] AC 613
pursuer did not need to prove that, but for the dust from the swing hammers, he would not have
developed pneumoconiosis. All he needed to prove was that the dust from the swing hammers
contributed materially to the dusty atmosphere which he breathed and which caused his illness.’ 6
In contrast, in his speech in Wardlaw, Lord Reid stated ‘[t]he medical evidence was that
pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica
inhaled over a period of years. That means, I think, that the disease is caused by the whole of the
noxious material inhaled and, if that material comes from two sources, it cannot be wholly
attributed to material from one source or the other.’ 7 This means that the disease was caused by
the whole of the dust, both guilty and innocent combined, so that in the absence of one source
of dust, the disease would not have occurred. The ‘but for’ test is therefore satisfied. The effect
of the phrase ‘material contribution to injury’ is to overcome the false impression that the
balance of probabilities standard of proof operates alongside the ‘but for’ test in such a way that
where there are two sources of dust, both of which are necessary for the harm to occur, only the
greater source will be held to have been the cause. This is clear from Lord Reid’s argument that
he ‘cannot agree that the question is: which was the most probable source of his disease, the dust
from the pneumatic hammers or the dust from the swing grinders?’. 8 The concept of material
contribution to harm enables the identification of situations where two causes act cumulatively
and forces the recognition that they are indeed both ‘but for causes’ of the harm. Clearly where
the injury is said to be ‘divisible’, under the material contribution to harm test the negligence is a
‘but for’ cause of the harm occurring to the particular extent that it did and liability will be found
despite the impossibility of ascertaining the precise extent of the contribution. 9 Effectively this
test is a reminder that the ‘but for’ test does not operate to identify the effective cause, because
‘effective cause’ is a normative rather than factual concept which the ‘but for’ test, as a test of
factual causation, is not apt to identify.

Confusion may have arisen as to the application of this in light of Hotson 10 and Gregg 11 where it
was held that where the background risk of harm occurring is already greater than fifty percent
before the negligence occurs then the negligence is deemed to have made no impact on the

6 n.4 above, para 129

7 n.5 above, 621
8 Ibid
9 The Court of Appeal has since considered (obiter dicta) the question of whether apportionment of damages is

appropriate in material contribution to harm cases and concluded that apportionment should not take place
regardless of whether the injury is divisible or indivisible. Although apportionment may be desirable in cases of
divisible injury, such apportionment would be artificial when the court has resorted to the material contribution to
harm test because the extent of the contribution made by the negligence is necessarily unascertainable. Dickins v O2
plc [2008] EWCA Civ 1144, paras 40 - 47
10 Hotson v East Berkshire HA [1987] AC 750
11 Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176
outcome as the law considers the patient to have been ‘doomed’ before the negligent
intervention. Such confusion can only arise though from a failure to note the crucial distinction
between the facts in Wardlaw and Bailey on the one hand, and Hotson and Gregg on the other. In a
Wardlaw scenario, the defendant negligently created a source of a harmful agent that acted upon
the victim alongside another source of the same harmful agent. In contrast, in Hotson and in
Gregg the defendant’s negligence did not introduce another source of the harmful agent, but
allowed the original one to run its course rather than preventing it from so doing. Therefore in
the latter scenario the harmful agent either could or could not be stopped from resulting in harm
and in this respect the doctor’s negligence was an alternative but not a cumulative cause.

The complexity of causation creates a need for greater clarity and depth of analysis

As stated above, after concluding that material contribution to harm is a departure from ‘but for’
causation, Waller LJ asked whether this was ‘a case in which the judge was entitled to depart
from the ‘but for’ test’. Unfortunately the broad terms in which this question was formulated
obscured the fact, which later became clear, that he was actually asking whether this case, as a case
of medical negligence, was one in which the judge was entitled to depart from the ‘but for’ test. Upon
reading the case this contributes to the challenge of being able to see the position clearly among
some of the recent case law relating to causation.

The existing body of case law on the doctrine of causation is already vast and complex since
exceptions to the ‘but for’ test have been developed, or not, to meet the difficult factual and
scientific problems facing the courts. This creates an understandably difficult task for courts now
faced with resolving concrete causal problems. It is therefore essential to approach the case law
in a clear and analytical manner. Yet Waller LJ did not adopt a clear starting point for his
analysis. Rather than beginning from the basic ‘but for’ test and branching out towards the
exceptions as necessary, he appears to have surveyed the vast body of causation cases before
attempting to narrow down to a conclusion. Hence, having referred to Fairchild to establish that
the ‘material contribution to harm’ test is a departure from ‘but for’ causation, in order to answer
the question of whether the Court was entitled to depart from the ‘but for’ test in this case,
Waller LJ continued to explore Fairchild, then McGhee 12, Wardlaw, Wilsher13, Gregg and Hotson. It
has been explained above that Hotson and Gregg were not relevant to the case at hand at all and
although Waller LJ noted that these cases were ‘not concerned with whether the negligence made
12 McGhee v National Coal Board [1973] 1 WLR 1
13 Wilsher v Essex AHA [1988] AC 1074
a material contribution to the damage’ 14 it would be helpful if he were to explain why they were
not concerned with this question. Furthermore, once it is noted that McGhee, Wilsher, and
Fairchild deal with the risk-based understanding of causation contained in the concept of ‘material
contribution to the risk of harm’ it is apparent that they are not applicable to a situation where
actual causation of harm is at stake. When addressing causal problems it should be borne in
mind that ‘but for’ and ‘material contribution to risk’ establish factual causation of harm, but that
this is fundamentally different to finding that the negligence ‘materially increased the risk of
harm’. The House of Lords has even gone as far as to acknowledge that the latter approach
establishes liability in the absence of causation. 15 Since these cases had been raised by counsel,
the Court was obliged to address each of them, but confusion is bound to arise if a court outlines
all of the various tests of causation before working backwards to establish how they apply in the
instant case. A specific vocabulary of causal terms such as ‘cumulative’, ‘alternative’, ‘divisible
injury’, ‘indivisible injury’ has emerged providing for clearer reasoning about the relevance of
decided cases. Whilst there was some use of these terms in Waller LJ’s opinion the future
development of causal principles will be clearer if in each case the courts consistently employ this
terminology in the analysis of a case.

A distinct approach to medical negligence?

In his concluding remarks Waller LJ expressed the view that ‘one cannot draw a distinction
between medical negligence cases and others’. 16 It is to be argued that this opinion can and
should have limited scope. This is particularly so because the case itself highlights the confusion
that has arisen by failing to adequately characterise the causal problem specific to a particular
type of medical negligence scenario, namely that in Hotson and Gregg.

This case specifically deals with the issue of the ‘material contribution to harm’ test of causation
and whether it is applicable in this instance. On his understanding that the ‘material contribution
to harm’ test is a departure from the ‘but for’ test of causation, Waller LJ was essentially
enquiring whether the House of Lords’ refusal to apply the McGhee ‘material contribution to risk’
test in a medical context 17 means that we should also decline to apply the ‘material contribution
to harm’ test in this context. Seen in this light, Waller LJ’s conclusion that the test is equally

14 n.1 above, para 46

15 Barker v Corus UK plc [2006] UKHL 20; [2006] 2 AC 572
16 n.1 above, para 46
17 n.13 above
applicable in medical negligence cases as in other types of case is the correct approach and he
demonstrates that the House of Lords has, in previous medical negligence cases, expressed the
test of causation as whether the negligence ‘caused or substantially contributed to the injury’. 18
This, however, should not be taken to mean that one can never draw a distinction between
medical negligence cases and others.

As argued above, Waller LJ considered cases such as Gregg and Hotson in his judgment without
thoroughly analysing the causal processes involved and this obscured the discussion of causation.
Yet it is particularly difficult to characterise the causal process that operates in those cases which
involve a doctor’s negligent failure to diagnose or treat an existing illness. Such cases, where the
injury occurs not through the doctor introducing a new risk of harm in the course of the
treatment of his patient, but through the materialisation of the pre-existing illness, pose a causal
problem that appears to be uniquely limited to a therapeutic medical negligence context. The
problem is that the causal process cannot properly be defined as involving alternative causes
because if harm occurs it is necessarily due to the illness itself as well as any negligence. Stauch
has noted that ‘medical negligence cases involving therapeutic treatment present difficulties of
multiple causation as a matter of routine. Two candidate conditions are automatically present:
the patient’s condition, which represents a deviation from the standard physical condition of
human beings, and the doctor’s breach of duty’. 19 Even with the doctor’s negligence the harm
cannot occur without the illness also existing. This led Lord Bridge to the conclusion in Hotson
that ‘the plaintiff’s evidence, at its highest, was that the delay in treatment was a material
contributory cause’. 20 Yet it is not possible to analyse the causal problem in terms of ‘material
contribution to harm’ because it does not involved ‘cumulative causes’ in the same way that they
appeared in Wardlaw. In Wardlaw there were two sources of the harmful agent which existed
concurrently. In contrast, in Hotson and in Gregg there was one source of the harmful agent (the
illness) and at most the doctor’s negligence can be said to have allowed the spread of this source
of the harmful agent rather than adding a source of it himself. His role as doctor is not merely to
refrain from adding another source of harmful agent, his role is to take reasonable care to
diagnose and treat the existing source and importantly he may not succeed in removing the
harmful agent even if he is not negligent. These characteristics make such cases of therapeutic
medical negligence unique and demand a unique approach to causation. The impossibility of
treating these cases as either ‘alternative cause’ cases or ‘cumulative cause’ cases may mean that

18 n.1 above, para 41 referring to Lord Hoffmann’s speech in Gregg v Scott

19 M. Stauch, ‘Causation, Risk and Loss of Chance in Medical Negligence’ (1997) OJLS 205, 213-4
20 n.10 above, 782
the causal process is so difficult to analyse that they require a different approach to causation.
The current all-or-nothing approach seems thoroughly inadequate in light of the particular causal
process, so the solution may be a loss of chance approach, however this is not the place to fully
develop such a solution.

In conclusion, apart from the question of the correctness of the Court’s conclusion that ‘material
contribution to harm’ constitutes a departure from ‘but for’ causation, this case is of particular
interest because it highlights the confusing state of the law relating to causation and the
consequent difficulty of applying causal principles to concrete factual scenarios. If the law on
causation is to become clearer, and to ensure the consistency and coherence of future
developments, then it is essential that the courts are stringent in their analysis of causal problems
making full use of the developing causal vocabulary.