Court of Appeal

Published August 26, 2008

Bailey v Ministry of Defence and Another

Before Lord Justice Waller, Lord Justice Sedley and Lady Justice Smith

Judgment July 29, 2008

Where medical science could not establish the probability that but for an act of negligence an injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the “but for” test was modified and the claimant would succeed.

The Court of Appeal so stated when dismissing the appeal of the Ministry of Defence as managers of the Royal Haslar Hospital against the decision of Mr Justice Foskett ([2007] EWHC 2913 (QB)) to find it liable in damages for serious brain damage suffered by Grannia Geraldine Bailey, claiming by her father and litigation friend Maurice Bailey.

The claimant had been treated first in the Royal Haslar Hospital and then transferred to the renal ward of St Mary’s Hospital, Portsmouth, managed by the second defendants, Portsmouth Hospitals NHS Trust, where she suffered a cardiac arrest resulting in brain damage. She argued that a lack of care which occurred over January 11 to 12, 2001 in the Royal Haslar Hospital left her so significantly weakened that it caused or materially contributed to the cardiac arrest on January 26, 2001.

The judge dismissed the claim against the second defendants and held that the Ministry of Defence’s negligence made a material contribution to her injury.

Mr Christopher Gibson QC and Mr Paul Dean for Ms Bailey; Mr Derek Sweeting QC for the ministry.

LORD JUSTICE WALLER said that the key issue for the judge was one of causation.

In cumulative cause cases, such asBonnington Castings Ltd v Wardlaw ([1956] AC 613), the “but for” test was modified.

There were no cases in the medical negligence context which cast any doubt on applying Wardlaw.

In his Lordship’s view, one could not draw a distinction between medical negligence cases and others. The position in relation to cumulative cause cases could be summarised as follows: If the evidence demonstrated on a balance of probabilities that the injury would have occurred as a result of the nontortious cause or causes in any event, the claimant would have failed to establish that the tortious cause contributed. Hotson v East Berkshire Area Health Authority ([1987] 1 AC 750) exemplified such a situation.

If the evidence demonstrated that but for the contribution of the tortious cause the injury would probably not have occurred, the claimant would have discharged the burden.

Where medical science could not establish the probability that but for an act of negligence the injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the “but for” test was modified, and the claimant would succeed.

The instant case involved cumulative causes acting so as to create a weakness and thus the judge applied the right test and was entitled to reach the conclusion he did.

Lord Justice Sedley and Lady Justice Smith agreed.

Solicitors: Blake Lapthorn Tarlo Lyons; Treasury Solicitor

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