Opportunity to revisit the law on material contribution not taken

The Privy Council (25 January 2016) handed down the judgment in Williams v The Bermuda Hospitals Board [2016] UKPC 4. It had been hoped that the Supreme Court, in its guise as the Judicial Committee of the Privy Council (JCPC), might take the opportunity to revisit the existing law on material contribution and causation, which some feel is in need of reform. This proved not to be the case, with the Privy Council upholding the Court of Appeal of Bermuda’s decision and dismissing the Hospitals Board’s appeal.

The claim involved delay, after presentation at the hospital, in both the diagnosis and surgical treatment of acute appendicitis. The patient, Mr Williams, sustained a perforated appendix leading to sepsis which, by the time surgery was performed, had caused myocardial ischaemia and damage to his heart and lungs.

The local judge at first instance dismissed Williams’ claim. He found that although the delay was negligent, it could not be shown on the balance of probabilities that it had caused the injuries. The Court of Appeal of Bermuda overturned his decision on causation, stating that the question was not whether the negligent delay caused the injury but whether it materially contributed to it.

Applying the principles from an industrial disease case (Bonnington Castings Ltd v Wardlaw [1956] AC 613) to a clinical negligence claim, the JCPC held that, where harm is indivisible (as here), successive events are each capable of making a material contribution to a subsequent harmful outcome. The development of the sepsis and resulting myocardial ischaemia was a single continuous process (i.e. it was indivisible). Due to the hospital’s negligence it continued for a minimum period of 2 hours 20 minutes longer than it should have done.  It was right therefore to infer on the balance of probabilities that the hospital board’s negligence materially contributed to the process, and therefore materially contributed to the injury to Mr Williams’ heart and lungs.

The JCPC did however take the opportunity to address the Court of Appeal decision of Bailey v Ministry of Defence [2009] 1 WLR 1052. Lord Toulson (who gave the only opinion) said, “although not strictly necessary” that the JCPC “does not share the view of the Court of Appeal that the case [Bailey] involved a departure from the ‘but-for’ test.”

 Although Williams is a higher judicial authority than Bailey, these brief remarks are very clearly obiter and are not at all easy to reconcile with the clear statement of Waller LJ in Bailey that “In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.”

The decision in Williams clearly upholds the use of the ‘material contribution’ test in cases in which the injury or harm suffered is regarded as indivisible. To this extent it has application beyond the clinical negligence setting, most obviously in industrial disease claims – which is largely as would be expected, given the detailed analysis of cases such as Bonnington.

Although the dismissal of the hospital’s appeal in Williams may be regarded as disappointing by some, Lord Toulson’s opinion does – subject to his obiter remarks about Bailey – come across as a balanced decision on indivisible harm that neither over-expands the law of causation nor harshly restricts it. It is therefore clearer than ever that an early determination of the divisible or indivisible nature of the harm suffered remains critical to successful claims handling.


Written by Judith Davison, professional support lawyer

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