Date: Fri, 8 Aug 2008 03:56

From: David Cheifetz

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

Dear Michael,

What I meant to ask in the last message was whether the reason that the trial judge and the CA didn't apply Wilsher for a common sense assumption of but-for causation because the trial judge had rejected the plaintiff's positive evidence, therefore it wasn't open to him to make a common sense assumption of probability.

I meant sufficiency for probability. As I understand the facts, A and B together were not sufficient for probability. The trial judge rejected the plaintiff's positive evidence as to how the weakened state probably resulted in the aspiration - CA [28] trial [55]. So, sufficient for "material contribution" less than probability? Well, yes, but that doesn't add anything given that the CA had defined mc to mean anything more than negligible but less than substantial. An equivalent term is possibility.

At 31 the CA says "But the question is whether the judge was entitled to make "the common sense assumption" that it was the claimant's generally weakened and debilitated condition that caused her not to be able to respond naturally and effectively". That can't be a common sense assumption of probability given para 46 and that the CA didn't apply Wilsher.

The trial judge and the CA went no farther than finding that weakness was a possible cause. If they went further, para 46 of the CA reasons wouldn't make sense. So, even if the physician's negligence was necessary for that weakness, the negligence is still nothing more than a possible cause. Calling it a material contribution to a possible cause doesn't elevate it beyond that.

If I'm right, that puts us back to square 1: the CA decided that possibility is enough for factual causation. I'd have thought that, after Gregg, Fairchild and Barker, that wasn't open to them. And, if I might, even if it was, certainly not in conjunction with solidary liability rather than proportional.

Regards,
David

----- Original Message ----
From: "Jones, Michael" 
To: DAVID CHEIFETZ; Neil Foster; Sarah Green 
Sent: Thursday, August 7, 2008 7:14:34 PM
Subject: RE: Factual Causation Follies - Bailey v The Ministry of Defence & Anor (EWCA)

Dear David,

Is this correct?

I'm sorry, I don't know whether it is correct, because I don't understand the question/premise.

My (simplistic) understanding of the complex medical evidence, reduced to its basics, was that the claimant's weakened state had two causes, the negligence and the pancreatitis. So I don't understand the statement that "the trial judge was not prepared to find that A and B, together, were probably sufficient". So far as I can tell, A and B were sufficient, and Wilsher was irrelevant.

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