Date: Fri, 1 Aug 2008 02:23

From: Neil Foster

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

Dear David et al

Bailey is a helpful decision because it identifies for me where the "rot" started in this area. In my view it comes in the quote at [14] from Lord Rodger in the House of Lords' decision in Fairchild. Lord Rodger with respect gets it wrong when he says that Wardlaw is not a case of "but for" causation. To my mind Lord Reid in Wardlaw is clear - the two types of dust both contributed to the disease (see the quote at [16] in Bailey). Since A and B both contributed, even if A is "slight", then it just is the case that "but for" A, the result would not have eventuated. So there is no clash between Wardlaw "material contribution" and "but for".

So when Waller LJ says in Bailey at [36] that "material contribution" is "not an application of the but for test" this is understandable, given his position in the judicial hierarchy, but it is still wrong. And when in [39] his Lordship poses the final two questions there - "cumulative cause" or "but for", the answer is - Yes to both. And I think that to read Lord Keith as saying something else is clutching at straws.

Given all that it is interesting that as I read the case there was no need to go for some "modification" of "but for". As far as I can see the judge found that the negligence of the doctor in failing to properly resuscitate the plaintiff was one of the factors which led to her subsequent weakness and hence to her brain damage. It was not the "main" cause, but it was a part of the chain of events. His finding at [33] that each of the later pancreatitis and the initial negligence "contributed materially to the overall weakness and it was the overall weakness that caused the aspiration" is perfectly adequate for an entirely orthodox finding of causation.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> DAVID CHEIFETZ 1/08/08 11:04 >>>

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.

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