MATERIAL CONTRIBUTION: LIGHT AT THE END OF THE TUNNEL?

The decision of the Court of Appeal in Zgonec-Rozej and Others v Pereira can be seen as a further step in providing clarity in the difficult area of how causation in tort is proved by material contribution to damage without invoking the Fairchild exception.  

The relevant facts of this tragic case can be briefly stated.  The Deceased, a leading barrister, had a long history of psychiatric illness.  He had been treated by the Defendant, a consultant psychiatrist, in the community but was then admitted as a voluntary patient to a psychiatric hospital.  Shortly after his admission, the Defendant handed over care of the Deceased to another consultant as the Defendant was going on leave.  The Judge at First Instance found that the handover, insofar as there was one, was inadequate.  The Claimant’s case was that the handover should have included a detailed plan of management emphasising the need for psychotherapy.  The Deceased’s care was then managed by the second psychiatrist for a period of weeks.  The Defendant returned to work but had not seen the Deceased before he committed suicide whilst on leave from the hospital.  

Whilst the Judge accepted there had been a breach of duty in relation to the handover, he rejected the claim in causation.  He found that, as there was no evidence before him that the second consultant had been negligent in her management, it could not be found that the handover as contended for by the Claimant would have made any difference to management.  The second consultant would be able to assess the Deceased and could have specified psychotherapy herself.  That the Defendant did not indicate the need for psychotherapy in a proper handover could not be considered causative in these circumstances.  

The Judge also rejected the Claimant’s secondary case, which was to rely upon causation by material contribution.  

The Claimant appealed, contending that the Judge should have found but-for causation was established or, if he could not, that causation was established by material contribution.  The Court of Appeal rejected both grounds of appeal.  They held that the Judge was entitled to conclude on the evidence before him, in particular the lack of any evidence or criticism of the second consultant, that causation was not established on the balance of probabilities.  The Claimant was not entitled to rely upon material contribution to damage if, on the facts, she could have succeeded on a but-for basis but simply failed to do so.  In paragraph 78 of the Judgment of the Court of Appeal, Lady Justice Nicola Davies stated that material contribution does not arise where factual causation can be determined on a but-for basis.  

The important consideration here are the words ‘can be’.  That a Claimant fails on particular facts is not equivalent to impossibility of proof.  The Claimant’s argument on material contribution was similar to many seen in cases since Bailey v The MOD; that is to suggest that there is some ill-defined concept of material contribution which can apply where there is at least some evidence suggesting causality but not sufficient to form the basis of a finding of proof of causation on a conventional test.  The approach of the Court of Appeal in this case is similar to that in the case of Holmes v Poeton [2023].  

These authorities make it clear that a threshold to proof by material contribution to damage has to be established in terms of proving that there is, on the balance of probabilities, some factual connection between the Defendant’s breach of duty and the occurrence of injury.  So in Bailey v The MOD,  at First Instance, Mr Justice Foskett found that the Defendant’s breach of duty had materially contributed to a state of weakness and that the Claimant’s injury followed from this state of weakness.  He indicated that he could not find whether the Defendant’s breach of duty, as opposed to the Claimant’s underlying condition, was the predominant cause of the weakness.  It should be noted that this finding in itself does not preclude a finding of causation on the balance of probabilities.  The breach of duty causing weakness could have tipped the balance on the facts of the case whereby the Claimant aspirated her vomit even if the predominant cause of the weakness was her underlying condition.

Be that as it may, the Court of Appeal were somewhat creative in their interpretation of the Judge’s findings.  In particular, stating that the Judge had found that it was impossible for the Claimant to prove causation on a but-for basis.  It does not appear from the first instance Judgment that this argument was advanced or considered.  In any event, the Court of Appeal considered that the finding of material contribution was sufficient on the assumption that the Judge was deciding that the Claimant could not prove  that the Defendant’s breach of duty made a crucial difference to outcome.  

On this analysis, the outcome in a Bailey-type case would be achieved if the evidence showed that there was a material contribution to the causal event but that the evidence was finely balanced as to whether this made a crucial difference.  This calls into question the difficult point of what ‘material’ means.  This continues to be interpreted in a somewhat impressionistic way, in particular by ‘material’ not being de minimis.  Considering the term ‘material’ in context, it is reasonable to suggest that it would mean that the Defendant’s breach of duty could at least reasonably have made a difference to outcome even if it cannot be shown on the balance of probabilities that it did so.  So to vary the facts of Bailey slightly, if there was expert evidence which indicated that 80% of the weakness came from the underlying condition with a 20% contribution from the breach of duty , that the 80% weakness created a sufficient level to cause the injury in question but that it could not be said that on the balance of probabilities the injury would not have occurred in the absence of the 20% contribution then the proof by material contribution would follow.

Approaching material contribution in this way does give some clarity and focus to the concept, as opposed to being what I have previously described as a ‘forensic get out of jail free card’.  

On this basis the principle is kept within discernible confines . Reversing the onus of proof within this enclave has at least a sense of fairness. 

The traditional and inevitably male maxim was ‘he who asserts must prove’.  In the context of a material contribution claim, it could be said that the Claimant has proved that the Defendant did in fact contribute to the cause of injury.  It is for the Defendant to prove that the injury would have occurred without contribution from the Defendant.