Date: Fri, 1 Aug 2008 22:37

From: David Cheifetz

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

Dear Colleagues

Perhaps somebody can explain why Bailey wasn't dismissed on the basis of Hotson and Gregg v Scott other than that the CA missed this point? Para. 45's purported basis for distinguishing Gregg makes no sense to me.

I'll quote the beginning words of the last sentence in para 46: "In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened ...." So, why isn't Bailey isn't a case where the there was medical negligence but the plaintiff could not establish that the negligence caused her injury on the balance of probability? Isn't that the necessary effect of what the trial judge held (and the CA accepted see paras. 28-34 of the CA reasons) which was that there was not sufficient evidence to conclude that subsequent intervention probably would have made a difference? All medical negligence errors are cumulative. Para. 45's purported basis for distinguishing Gregg is that Gregg wasn't about "material contribution".

[45] Hotson was a case where the House of Lords held that the cause of the injury was the non-negligent falling out of the tree and that that injury would, on the balance of probabilities, have occurred anyway without the negligent delay in treatment; thus the negligent conduct made no contribution to causing that injury. Gregg v Scott was again a medical negligence case but was not concerned with whether the negligence made a material contribution to the damage.

Gregg was about whether factual causation can be established by proof which is only a possibility, not a probability. The HL said no. That's what Bailey is about unless Bailey isn't dealing with factual causation. But it is. The CA has defined material contribution to be a factual cause which is only a possibility.

Does the CA's attempt to distinguish Gregg make any sense to anybody?

The trial judge did not find that the physician's negligence probably made a difference. That is, he did not find that the aspiration of vomit which caused the cardiac arrest which caused the brain damage probably would not have occurred if the patient had received proper care after the operation. Rather, he found only that that was a possibility: see para 33 of the CA reasons quoting para 61 of the trial reasons. That seems to be because there was no evidence that anything done subsequently probably would have made a difference. That's clear, as I've indicated, from the last sentence of para. 46.

I think we have to assume that the reason that neither the trial judge nor the CA fell back to Wilsher's "strong and pragmatic" but-for approach is that the defence expert evidence was seen as sufficient evidence to the contrary to prevent the Wilsher [ahem] logical, common sense, inference of causation. I think that's the answer to the point Sarah and Neil have made about the judge's findings of fact ought to have been understood as amounting to an orthodox conclusion of but-for probable cause.

So that made the case one of possibility or nothing.

Regards,
David Cheifetz

----- Original Message ---- 
From: Sarah Green
To: Neil Foster   
Sent: Friday, August 1, 2008 10:31:04 AM
Subject: RE: Factual Causation Follies - Bailey v The Ministry of Defence & Anor (EWCA)

Dear Colleagues,

It seems to me to be another instance of the Wardlaw line of cases being confused with the McGhee/Fairchild approach. The latter principle has nothing whatsoever to do with the facts of Bailey. Despite Lord Reid’s assertion in McGhee that he could “not accept the distinction drawn … between materially increasing the risk that the disease will occur and making a material contribution to its occurrence”, the distinction is, with respect, one of considerable significance. It explains, for instance, precisely why the McGhee/Fairchild situations required an exceptional, modified causal approach for which, as Neil points out, there was simply no need in Wardlaw or in Bailey.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>