The decision in Bailey v Ministry of Health raises important issues in relation to the causation concept of ‘material contribution to harm’ and its application in the context of medical negligence. The Court of Appeal considered this test of causation is a departure of the normal but for causation rule and appeared to have made the correct ruling that the causation in this case was satisfied as the tortious negligence made for a sufficient connection to be liable. However, while the outcome seems to be accurate, the Court in concluding that material contribution to harm is a departure to but for rule is not convincing. Waller LJ’s remark that ‘one cannot draw a distinction between medical negligence cases and others’ also deserves distinct attention. While it is applicable to the case of Bailey, this argument was a flawed analogy and there are also strong policy concerns for the justification. The law of causation has long been a problematic area that attracts clarification. Thus, in view of the inherent obscurity in causation problems, the court is bounded to employ a clearer principle in order to uphold consistency and coherence in this doctrine.
Relationship between Bailey case and but for causation rule
The basic rule of causation is the but-for test which requires the claimant to show that but for the defendant’s breach of duty, he would probably not have suffered from the damage. Causation was satisfied in most cases which do not give rise to difficulty. Problem arises, however, in cases which involved two or more causes which have contributed to the undesirable outcome in respect of which injury are claimed. These problems have led to the departure of the normal but-for rule in certain circumstances.
In Bailey, the claimant suffered from a brain damage as the result of cardiac
arrest brought on by aspiration of her vomit. The causation issue turned on to whether her weakened state was due to her underlying pancreatitis and/or the weakness due to defendant’s negligence as a result of the tortious conduct. Since “each contributed materially to the overall weakness and it was the overall weakness that caused the aspiration” , the trial judge, Forskett J. found there was a causation between the breach and the cardiac arrest. It was therefore held that the but-for test did not need to be satisfied before a material contribution could constitute a causal link for the indivisible injury. It was respectfully submitted that this analysis was correct. This was a straightforward application of Bonnington Castings v Wardlaw that in case involving cumulative causes, where there is evidential gap due to inability that is unable to establish the relative potency of the causes, it is sufficient to establish causation if the defendant’s negligence made a material contribution to the claimant’s injury, which is something more than negligible. There was no need to draw ‘robust and pragmatic’ inferences that as long as negligent conduct...