Contributory Cause - Latest Word from the Law Lords
February 2016

Article 1 - Contributory Cause - Latest Word from the Law Lords - Derek Marshall (MCIArb)

We all learned at University the problems of proving negligence where there are several possible causes of the injury, especially where they do not occur simultaneously so that the Defendant is able to argue that some intervening act breaks the chain of causation. This is a particular problem in clinical negligence cases where a complex chain of events will often be involved, leading up to the death or avoidable injury of the patient. This was the problem which the Privy Council had to tackle in the recent case of Williams v The Bermuda Hospitals Board [2016] UKPC 4.

The facts are shortly set out in the judgment of Lord Toulson. Mr Williams went to the emergency department of the King Edward VII Memorial Hospital in Bermuda, complaining of abdominal pain. He was suffering from acute appendicitis. Later that day he had an appendectomy, but there were complications. He was seriously unwell for a period of weeks, but he finally made a full recovery. He sued the appellant hospital board, which is responsible for the management of the hospital, for damages for his pain and suffering, medical expenses and loss of earnings. He
alleged that the complications were the result of negligent delay in his treatment. The trial Judge had found that there had been negligence but that Mr
Williams had not proved that the culpable delay caused the complications. He awarded Mr Williams $2,000 in damages for his extra suffering during the period of culpable delay prior to the operation. The Court of Appeal reversed the judge's decision on causation and remitted the case to the trial judge for a fresh assessment of damages. Hellman J increased the award to $60,000 excluding interest. By the time the matter came before the House of Lords, Mr Williams had donated his damages to charity and the Hospital Board stated that they would not be asking for them back even if
they won but pursued the appeal because of the important point of principle at stake. They said that the trial Judge had got it right first time around in limiting the period additional pain and suffering for the short period of delay prior to the operation and that the Court of Appeal should not have intervened so that Mr Williams got his damages on the basis of the entire period.

The Privy Council disagreed. In their judgment, the "material contribution" approach to causation was not confined to cases in which the timing of origin
of the contributory causes was simultaneous. As a matter of principle, successive events were capable of each making a material contribution to the
outcome. The Court of Appeal had over-ruled the trial judge because he had "raised the bar unattainably high" in his finding that Mr Williams had failed to prove his case in full. The proper test of causation (according to the Court of Appeal) was not whether the negligent delay and inadequate system caused the injury but rather, whether the breaches of duty had contributed materially to the injury. The Privy Council had to reconsider this through the prism of the venerable authority of Bonnington Castings Ltd v Wardlaw [1956] AC 613 in which the Claimant had contracted pneumoconiosis
from the inhalation of dust, containing minute particles of silica, in the course of his employment at a foundry. Most of the dust originated from the
operation of pneumatic hammers, but some of it escaped from swing grinders. The former involved no fault on the part of the employers, but the latter resulted from a breach of statutory duty in failing to intercept and remove that part of the dust. The multiple causation factors were therefore simultaneous in time rather than successive.

The Privy Council approved the academic analysis of the decision in Bonnington by Sarah Green (Causation in Negligence, Hart Publishing, 2015, Chapter 5, p 97) who said this: "It is trite negligence law that, where possible, defendants should only be held liable for that part of the claimant's ultimate damage to which they can be causally linked ... It is equally trite that, where a defendant has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes ......." . That begs the question however, "What
about successive causes, and where does that leave the principle of intervening actions?" Lord Toulson's answer was this: "The parallel with the present case is obvious. The Board is not persuaded by (Counsel for the Hospital Board) that Bonnington is distinguishable because in that case the inhalation
from two sources was simultaneous, whereas in the present case the sepsis attributable to the hospital's negligence developed after sepsis had already
begun to develop".

That is not the end of the matter however because as Lord Toulson conceded, the sequence of events may be highly relevant in considering as a matter of fact whether a later event has made a material contribution to the outcome or conversely whether an earlier event has been so overtaken by later events as not to have made a material contribution to the outcome, but those are evidential considerations. As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome. A claim will still fail if the most that can be said is that the Claimant's injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the Defendant, but it will succeed where there are successive linked events incrementally leading to the Claimant's injury in which the Defendant's negligence materially contributed to that outcome.

The conclusion to be drawn from this important decision is that the principle having been
established to the dissatisfaction of the hospital boards, the battle lines will switch to the conventional issue of whether the "material contribution" has been so overtaken by later events as to make no difference.

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