Material Contribution - Williams v The Bermuda Hospitals Board (Privy Council)

A decision of the Privy Council on appeal from the Court of Appeal of Bermuda has considered the issue of material contribution to an indivisible injury.

The Claimant, who was initially admitted to hospital for acute appendicitis, was subject to a negligent delay in performing a CT scan. This delay prolonged a pre-existing condition of sepsis (which had developed over 6 hours) for 2 hours and twenty minutes. As a result, the Claimant suffered heart and lung complications.

The trial judge found that injury to the heart and lungs was caused by a single known agent, sepsis from the ruptured appendix. Its development and effect on the heart and lungs was a single continuous process, which was not capable of being divided into separate components causing separate damage. 

The judge found for the Defendant on the basis that the Claimant had failed to prove that the complications he suffered were probably caused by the delay. The Claimant was awarded $2,000.

The Court of Appeal reversed the decision, and found that the trial judge was in error "by raising the bar unattainably high" and awarded the Claimant $60,000. The correct test for causation was not whether the negligent delay caused the injury but whether the breaches of duty contributed materially to the injury, which in this case was beyond argument. It was noted that the “but for” test is sometimes relaxed (as in the case of Bailey v Ministry of Defence [2009] 1 WLR 1052) to enable a claimant to overcome the causation hurdle when it might otherwise seem unjust to require the claimant to prove the impossible.

The Privy Council upheld the decision of the Court of Appeal, but employed different reasoning. It noted that a claim will fail if the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant. Accordingly, the claimant will not have shown as a matter of probability that the factor attributable to the defendant caused the injury. 

It was found that because this was an indivisible condition, it was not possible to say that the delay caused the sepsis, but it was possible to conclude that on the balance of probabilities the delay materially contributed to the condition. The Judges concluded that as a matter of fact, a third of the sepsis (i.e. the 2 hour delay) was a material contribution to the condition.

Commenting on Bailey v Ministry of Defence, the Board did not share the view of the Court of Appeal that the case involved a relaxation of the “but-for” test and considered that Bailey was decided on its own facts. The Judges concluded that the totality of the Claimant’s weakened condition caused the harm and accordingly the case would succeed on the “but-for” test. There was therefore no need to widen the 'but for' test as the Court of Appeal had sought to do. 

COMMENT:

• The case has potentially wide reaching implications for disease practitioners.  
• The Privy Council have effectively made a point of confirming (in a footnote!) that courts should hesitate before applying the doubling of risk test ("A doubled tiny risk will still be very small") or inferring causation from proof of increased risk. Lord Toulson appears to share the concerns of others over the troublesome Sienkiewicz decision.  
• The seminal but often misunderstood case of Bonnington was considered to be consistent with this decision, as a claimant can recover damages when they prove contribution in an indivisible injury case. The tribunal were clearly keen to put the decision in its proper context and to restate the law. 
• In divisible cumulative injury cases, wherever possible the court should be slow to impose liability for damage to which defendants can be factually linked.  
• It is apparent that the case is a further example of the highest court in the land trying to move away from Fairchild type mechanisms to assist claimants in difficulty in proving causation by conventional means. Interestingly the case is not mentioned once in the judgment!