Charles Feeny & Sammy Nanneh
In our article in the PI Update Law Journal, “Material contribution: the search for the elusive third way“, we argued that the decision in Bailey v. The MOD appeared to accept an exception to ‘but for’ causation in tort. However, the precise basis and ambit of this approach was neither clear nor justifiable. The term “material contribution to damage” had two clear and conventional meanings. First, it could represent proof of an identified proportion of a divisible injury. Secondly, it could connote that the Defendant’s conduct had not been the sole cause of an indivisible injury, but nonetheless a sufficient cause. Beyond this, it was difficult to see how material contribution to damage could operate in particular as an exception to ‘but for’ causation.
The Privy Council decision in Williams has been much anticipated. It was thought that the case would enable the highest court, albeit sitting in a different capacity, to consider the decision in Bailey. The NHSLA were given permission to intervene in the hearing of Williams, which was an appeal from the Court of Appeal in Bermuda. The facts of Williams were significantly similar to those of Bailey. Both involved a developing state, ‘weakness’ in Bailey and ‘sepsis’ in Williams, which resulted in an event causing further indivisible damage.
In Williams, the Judge at first instance had dismissed the claim on the basis of failure to prove causation, but the Court of Appeal of Bermuda had reversed the decision. In simple terms, they considered that on the Judge’s findings there was sufficient contribution to the Claimant’s sepsis to justify a finding of causation on the basis of material contribution to damage. This was an application of the Bailey ‘exception’. They did not consider that ‘but for’ causation needed to be established.
In the Privy Council, the Hospital Board accepted that Bonnington Castings was binding, but sought to distinguish it. This was done on the basis that the ratio of Bonnington only applied where the respective causal factors exhibited the same physical and simultaneous effect. It was argued that the ratio would not apply where the different causal factors were successive in their effect. This argument was rejected by the Privy Council.
“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 (as Hotson illustrates), or conversely whether an earlier event has been so overtaken by later events as to not 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.”
The Board then dismissed the Hospital Board’s appeal on the basis that there had been a material contribution from the breach of duty i.e. through the continuation of a septic process over an appreciable period. From this it was reasonable to infer a material contribution to the injury to the Claimant’s heart and lungs.
However, the Privy Council then went on to consider, albeit obiter, that the Court of Appeal had been wrong in Bailey to consider that the finding for the Claimant had not involved a finding on a ‘but for’ basis. The Privy Council gave consideration to Mr Justice Foskett’s findings of fact in Bailey. They considered that the degree of contribution to the injury found by him on the evidence was sufficient to infer ‘but for’ causation. It was the same reasoning process by which they considered the findings in Williams made a similar inference acceptable.
To this extent, it could be considered that Bailey, in terms of the Court of Appeal’s decision, has been marginalised. The position remains essentially conventional in terms of material contribution as a cause but not a sole cause . However, there is still a degree of ambiguity in the Privy Council’s decision as reflected in paragraph 47,
“The Judge concluded that the totality of the Claimant’s weakened condition caused the harm. If so, “but-for” causation was established.”
This is a reasonable statement in the context of the Privy Council’s view of the findings in both Bailey and Williams, that there was a substantial contribution to the global condition. But the question is still begged, what degree of contribution is necessary to establish ‘but for’ causation? That a Defendant’s conduct can be shown to have contributed to a global condition does not, of itself, establish ‘but for’ causation. The contribution may in fact be so marginal that it would be reasonable to argue that the subsequent injury would have occurred in any event in the absence of the Defendant’s contribution to the damaging process. The Courts would still have to consider at some stage where the bar is to be set in relation to material contribution to damage, but the indications from Williams and its reinterpretation of Bailey is that the contribution will have to be shown to have been substantial, so as to infer ‘but for’ causation
For the full version of the article on PI Update Law Journal in it’s January 2016 issue, see below.