Bailey v The Ministry of Defence & Anor

In clinical negligence, a claimant establishes causation where the negligent treatment made a material contribution to the injury, even though a non-negligent condition also materially contributed and it is impossible to identify which contribution was greater. The claimant need not prove that the negligent cause was the sole or dominant cause.

The ordinary “but for” approach is not incompatible with a material-contribution analysis where the evidence demonstrates more than one significant component contributing to the injury. The court must assess the evidence as a whole and draw appropriate inferences on the balance of probabilities.

The claimant suffered hypoxic brain damage after a cardiac arrest while receiving hospital treatment. She alleged that negligent treatment at the Royal Hospital Haslar, including inadequate fluid replacement and monitoring after an inconclusive ERCP, materially weakened her and contributed to the later cardiac arrest.

The claim against Portsmouth Hospitals NHS Trust was dismissed by agreement, with no order as to costs. The trial proceeded against the Ministry of Defence on breach and causation. The central issue was whether the established negligence materially contributed to the claimant’s weakness and consequent aspiration of vomit, notwithstanding the independent effects of severe pancreatitis.

1. Judgment was entered for the claimant against the Ministry of Defence, with damages to be assessed. The claim against Portsmouth Hospitals NHS Trust had already been dismissed by agreement, with no order as to costs.

2. The post-ERCP treatment involved negligently inadequate fluid replacement and resuscitation during the following 24 hours. Had the claimant been properly resuscitated, she would probably have been fit for further intervention on 12 January 2001. That intervention should have addressed the unresolved biliary obstruction and possible continuing bleeding. Its omission led to a PTC, emergency laparotomy and further surgery which should have been avoided.

3. The claimant’s weakness on 26 January had two closely connected components: the effects of severe pancreatitis and the effects of the negligent treatment and avoidable surgical complications. Both materially contributed to her overall debilitated condition.

4. The court applied the material-contribution approach discussed in Hotson v East Berkshire Area Health Authority [1987] A.C. 750. It held that the claimant did not have to prove that the negligent component was greater than the pancreatitis component. It was enough to establish, on the balance of probabilities, that the negligence materially contributed to the weakness which caused the aspiration.

5. Wilsher v Essex Area Health Authority [1988] A.C. 1074 did not prevent that conclusion. The present case involved two demonstrated contributing components, rather than uncertainty whether one of several entirely different possible agents had caused the injury. The “but for” test therefore did not require dismissal of the claim.