Bailey and Cumulative Causes Considered Again: Aspinall

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Update: 
Bailey v MOD has been considered again (albeit obiter) in two cases:

In Coakley v Rosie, (at 101-120) where HHJ Oliver-Jones QC found that, had he been unable to find for the Claimant on primary causation, he would have found for the Claimant on the basis of a material contribution, following Bailey.  

Coakley referred to another recent case in which Bailey was considered (but not relied upon by the judge): Pringle v Nestor (on Lawtel: [2014] EWHC 1308 (QB))
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The High Court has considered the judgment in Bailey v MOD [2008] EWCA Civ 883 (Bailii) on cumulative causes in clinical negligence, in the case of Aspinall v Secretary of State for Health [2014] EWHC 1217 (not available on Bailii as yet).

The Background: Bonnington and Bailey

The well-known principle in Bonnington Castings v Wardlaw [1956] AC 613 is that where a number of ‘agents’ can be shown to have materially contributed to an indivisible injury, a Defendant will be liable if one of those agents is the result of his negligence. Of course, if an injury is divisible, the Defendant is liable to the extent to which it contributed.

The application of the rule in Clinical Negligence cases was considered by the Court of Appeal in Bailey. The question was whether, following Bonnington, a contribution which was more than de minimis was sufficient.

The answer to the question was yes - the ‘but for’ test is modified in some cases. The Court set out the position explicitly (with emphasis added) (at [46]):

[…] If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. 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.

Interestingly in Clinical Negligence cases the issue is often not contribution directly to an ‘injury’ (like in Bonnington) but contribution to a condition or event. In Bailey the Claimant aspirated her vomit and thus suffered brain damage. The issue was why she had been so weak as to aspirate her vomit, and therefore the causation question was effectively ‘what contributed to her weakness?’ The court upheld the Judge’s decision that the negligence had made a material contribution.

Aspinall

In this case the claimant suffered an IVH shortly after birth. The remaining allegation at the end of trial was that the doctor had failed to detect and rectify a problem in the Claimant’s ventilation for a 45 minute period.

The allegation of negligence was dismissed, but the court went on to consider whether that period had contributed to the injury.

The court found on the basis of the expert evidence that the Claimant would have suffered the IVH regardless of the 45 minute period.

However, there was expert evidence that the 45-minute period would have contributed to the bleed the Claimant suffered. It would have “encouraged its onset” ([52]), and was “likely to have contributed to [it]” ([54]).

The Claimant therefore argued that Bailey could apply because the contribution of the 45 minute period was ‘more than negligible’.

Philips J dismissed this argument (at [58]): this was not a ‘cumulative cause’ case; the experts had been able to express a view and the court had found that the injury would have occurred in any event.

Analysis

This judgment affirms the position that the application of ‘Bonnington’ is only appropriate where medical science ‘cannot establish’ but for causation.

Put simply, Bailey will apply only if:

(i)                  the injury is indivisible, and

(ii)                medical science cannot establish whether or not the injury would have             occurred notwithstanding the negligence.

Such a conclusion is entirely logical – if it can be concluded that the whole of an injury would have occurred without the Defendant’s negligence, the Defendant should not be liable.

Claimants should be very cautious of attempting to rely on the Bailey decision, unless it really cannot be said to what extent the various causes contributed to the injury / condition.