Date: Fri, 1 Aug 2008 02:04

From: David Cheifetz

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

Dear Colleagues:

I wasn't going to respond but it's been quiet, the dog-days of August are around the corner, I haven't put either foot in my mouth recently (to my knowledge), so somebody might as well start the avalanche.

So England and Wales now have a test FOR factual causation in tort which is based on the possibility of factual causation, does not not require probability, and where that possibility is sufficient so long as it's merely more than a negligible possibility. Hmmm ...

How negligible is negligible? No doubt we'll know it when we see it.

Let's see if I have this right.

Where Fairchild applies, qualifying tortious conduct which can be shown to be no more than a possible factual cause produces proportional recovery only (all other requirements of the tort other than causation satisfied). In the Fairchild example, that conduct would be a sufficient cause of the harm, if it could be proven to be the probable cause.

Where Bailey applies, qualifying tortious conduct which can be shown to be no more than a possible factual cause produces solidary recovery (all other requirements of the tort other than causation satisfied). In the Bailey example, the tortious conduct is a necessary but not sufficient part of the cause of the harm.

So, anachronistically-speaking, the Fairchild & Barker plaintiffs only got a piece of the pot because their cause was too good. (That's if Bailey isn't inconsistent with Fairchild.)

Until the HL deals with Bailey, consider this. The CA is right that there's no necessary reason in principle to distinguish between medical negligence torts and other torts. So, there's always a possibility that Mr. Al-Fayed was right about the circumstances leading to a certain death, no? That could be a cumulative cause in terms of para 46 of Bailey, right? Of course, it might not be more than a negligible possibility, but that'll be question of fact that should be left to the trial judge to decide on a full record, right?

I'm sure the judges on the QB will be jostling to preside over that circus.

Is Ladbrokes giving short odds on the HL granting leave?

Still, one should be careful about the stones one throws when one's own backyard is ... littered. See, example, in Cartner v. Burlington (City), 2008 CanLII 37900 at paras 14-27 (Ont SCJ), Bowes v. Edmonton (City of), 2007 ABCA 347 and Zazelenchuk v. Kumleben, 2007 ABQB 650.

Oh .... If somebody is aware of a cause which isn't a cumulative cause in some relevant respect - speculations about religion and the Big Bang, aside - I'd be please to know about it.

Regards
DC

----- Original Message ----
From: James Lee
Sent: Wednesday, July 30, 2008 4:17:29 AM
Subject: A Quartet of Cases

...

Bailey v The Ministry of Defence & Anor [2008] EWCA Civ 883 (29 July 2008) is case on causation in negligence. Bonnington Castings Ltd v Wardlaw, McGhee v National Coal Board, Hotson v East Berkshire Area Health Authority, Wilsher v Essex Area Health Authority, Fairchild v Glenhaven Funeral Services Ltd, and Gregg v Scott were all cited. Waller LJ gives the leading judgment for the Court and summarised the first instance judge’s findings and reasoning as:

17. So the judge was concerned to ascertain whether the negligence in the care of the claimant (admitted to some degree) made a material contribution to the injury suffered by the claimant – material meaning something more than negligible. He held that it did and his reasoning in essence was (1) if appropriate care and resuscitation had been provided after the procedure on 12th January the claimant would have been to fit to have, and have had, a further procedure on the 12th January which would have saved all, or at least some, of the traumatic and life-threatening period and procedures which she had to endure on 15th to 19th January; (2) that would have avoided the considerable weakening of the claimant, which resulted and which was occurring in addition to any debilitation arising from her pancreatitis; (3) the physical cause of her aspiration and subsequent cardiac arrest was her weakness and inability to react to her vomit; (4) there were two contributory causes of that weakness, the non-negligent cause pancreatitis, and the negligent cause, the lack of care and what flowed from that; and (5) since each "contributed materially" to the overall weakness, and since the overall weakness caused the aspiration, causation was established.

The appeal was dismissed, with Waller J concluding:

46. In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed.

47. The instant case involved cumulative causes acting so as to create a weakness and thus the judge in my view applied the right test, and was entitled to reach the conclusion he did.

Although the language in the case is not always as clear as it might be, there is a difference between the material contribution to risk cases such as Fairchild and cumulative cases such as the instant case (on its facts), which involve the material contribution to the injury itself.

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