Date: Tue, 5 Aug 2008 13:40

From: Michael Jones

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

Dear All,

At the risk of repeating what others have said, and/or adding to the confusion:

Bailey was not a Fairchild/McGhee/Hotson/Gregg case at all. The claimant suffered brain damage because she was in a "weakened state which led to her being unable to respond naturally to her vomit" ([32]). What caused her weakened state? Both the defendant’s negligence and the (non-negligent) pancreatitis (there are specific findings of fact to support this). 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”. But she does not have to prove that the negligence was the sole or even the main cause of her weakened state. She only has to prove that it made a material contribution, applying Bonnington Castings v Wardlaw. There was ample evidence, and consequent findings of fact, to support the conclusion that the negligence had materially contributed to her weakened state. There was no need to draw “robust and pragmatic” inferences, or rely on notions of “increased risk”. This was as straightforward an application of Bonnington Castings to a case of medical negligence as you are ever likely to find.

If you don’t like the outcome, it is probably because you don’t like Bonnington Castings.

It was counsel for the defendant in Bailey who was arguing that it was a Fairchild/Hotson/Gregg case, and suggesting that on that the basis the claim should fail. Clever forensic tactics, but a complete red herring, which ultimately fooled neither the judge nor the CA.

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: DAVID CHEIFETZ  
Sent: Fri 01/08/2008 22:37 
Subject: Re: 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.

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