Wootton v J Docter Ltd & Anor

In a negligence claim arising from the dispensing of the wrong oral contraceptive, the claimant must establish that the error caused or materially contributed to the pregnancy. Statistical evidence concerning a change from one contraceptive to another over a full cycle cannot establish causation where the error involved only a short reduction in one hormone. Manufacturer warnings may reflect precautionary practice and do not, without an established basis, prove increased risk in materially different circumstances. The exceptional approach discussed in Fairchild and Barker cannot overcome failure to prove that the breach materially increased the risk of the relevant harm. Whether the ordinary “but for” test or an extended exception applies is immaterial where no increased risk attributable to the breach is established.

The appellant was prescribed Microgynon ED but was mistakenly dispensed Logynon ED. She took one, or at most two, Logynon tablets before returning to Microgynon and later became pregnant. The dispensing pharmacist was found negligent, but the Birmingham County Court held that the error had neither caused nor materially contributed to the contraceptive failure and dismissed the claim.

The appeal concerned whether the evidence justified a different conclusion on factual causation and whether the claimant could rely on exceptional causation principles because scientific knowledge could not identify precisely how the pregnancy occurred.

1. Appeal dismissed. The judge was entitled to reject the claimant’s expert evidence and accept the evidence of the defendants’ experts. The observational studies relied upon concerned women who changed contraceptive brands for a whole cycle, not a two-day reduction in progesterone. They did not establish that the claimant’s limited change in hormone intake increased the risk of contraceptive failure.
2. The evidence lacked a biological explanation for pregnancy resulting from the reduced progesterone dose. Manufacturer and medical guidance did not establish increased risk in these circumstances. Warnings concerning a change from one contraceptive to another addressed a different situation and might incorporate a precautionary margin.
3. The court declined to add to the Court of Appeal’s teaching on causation. The claimant could not invoke principles derived from Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 or Barker v Corus UK Limited [2006] AC 572 because she had failed to prove that the dispensing error materially increased the risk of contraceptive failure. Whether the ordinary “but for” test applied, or whether an exceptional principle could be extended to this type of case, was immaterial.
4. The judge’s reference to the background risk being greater than any possible additional risk did not amount to a finding that an additional risk had been established. Read as a whole, the judgment found that no risk attributable to the short reduction in progesterone had been proved.

• Court of Appeal (Civil Division) — The appeal was dismissed: [2008] EWCA Civ 1361.
• Birmingham County Court — His Honour Judge McKenna found the dispensing pharmacist negligent but held that the negligence had not caused or materially contributed to the pregnancy.