| Bailey v Ministry of Defence | |
| Court: | Court of Appeal |
| Citations: | [2008] EWCA Civ 883, [2009] 1 WLR 1052 |
| Judges: | Waller LJ, Sedley LJ and Smith LJ |
| Prior Actions: | [2007] EWHC 2913 (QB) |
| Transcripts: | Full judgment |
Bailey v Ministry of Defence [2008] EWCA Civ 883 is an English tort law case. It concerns the problematic question of factual causation, and the interplay of the "but for" test and its relaxation through a "material contribution" test.
Miss Grannia Geraldine Bailey went on a holiday to Kenya with her fiance in late September 2000. She came back with what was suspected to be gallstones. In early January 2001 she was admitted to Royal Hospital Haslar (a hospital for civilian NHS patients, but also used and run by the Ministry of Defence). At the hospital there were complications during the ERCP procedure to remove the stones from her bile duct. She bled extensively, but was put in a ward with little supervision. She was not resuscitated properly during the night, and she was very unwell in the morning. She got worse. At the same time (but this was not related to the hospital's lack of care) Miss Bailey developed pancreatitis. Pancreatitis sometimes develops after ERCP procedures. She was then transferred to another hospital, the Queen Alexandra and St Mary's Hospital in Portsmouth and put into intensive care. She was critical. For ten days, her life was in the balance. But she started to look better and was moved to the renal ward. The tragedy struck when she was drinking some lemonade. She got nauseous and vomited. Because Miss Bailey was so weak, she could not clear her air passages and she choked. By the time she was resuscitated she had gone into cardiac arrest and had hypoxic brain damage.
The question in the Court of Appeal was whether the first Ministry of Defence hospital caused the brain damage. It could not be said with certainty that it was their poor care that led to Miss Bailey's weakness (and choking leading to brain damage), because her weakness was also a result of the pancreatitis that Miss Bailey developed (and that was not the MoD hospital's fault). Counsel for Miss Bailey argued that the MoD hospital was nevertheless liable because although the brain damage would not, strictly, have been caused "but for" the substandard care, the substandard care had materially increased the risk of harm.
In the High Court Foskett J held that Miss Bailey should recover compensation. The Ministry of Defence appealed.
Waller LJ (delivering an opinion with which Sedley LJ and Smith LJ concurred) upheld the High Court, and ruled that the material increase in risk to Miss Bailey created by the Ministry of Defence's hospital made for a sufficient causal connection to be liable in negligence. In particular he asserted that there should be no distinction drawn between medical negligence (where there has been a material increase in risk) and employer liability cases. He held that where the "but for" test of causation cannot be satisfied because of some uncertainty, it is relaxed and a claimant will succeed in getting compensation if the defendant materially contributed to the cause of the injury.
The case received some quick comment. Sarah Green was supportive of the outcome for correcting some old mistakes. She wrote,
The exceptional approach to the causal inquiry which derives from McGhee and Fairchild does not apply to the Wardlaw/Bailey situation because there was in the former cases a need to modify the “but for” test because no “but for” causation could otherwise be established. The principal difference between the two types of situation lies in the nature of the claimants' injuries; in cases like Fairchild, where the injury is indivisible, it is simply impossible to establish “but for” causation because the cause of the injury (which might or might not be singular) cannot be identified even in part, in the way that it can with a divisible (cumulative) injury like the one in Bailey. Despite, therefore, Lord Reid's assertion in McGhee that he could not accept “the distinction drawn … between materially increasing the risk that the disease will occur and making a material contribution to its occurrence”, the distinction is, with respect to his Lordship, a very important one. Where a defendant is held liable for materially increasing the risk of an injury occurring, “but for” causation has not been established because it cannot be, and so some potential causes will attract liability even though they may well have had nothing to do with causing the injury in question...The result in Bailey is, therefore, clearly correct, since it coheres in substance both with the relevant authorities and with common sense. It is to be hoped, however, that the reasoning therein, and particularly the misleading assertion that it constitutes a modified application of the “but for” test, will not be misinterpreted in future decisions in this notoriously thorny area. In cumulative cause situations, the “but for” test itself stands because, by definition, for the cumulative cause problem to arise, there must be several causes, all of which, on the balance of probabilities, contribute to the end state of the claimant. Otherwise, it is a multiple potential cause situation, like Wilsher, in which a causal link cannot be forensically identified. In Bailey -type situations, on the other hand, it is the apportionment exercise, which would be carried out were the cumulative causes to have operated independently, that has to be modified.
By contrast Marc Staunch has been critical of "hairline distinctions" that the case law has given rise to, but focused some of his criticism on Waller LJ's universal approach, saying,
despite Waller LJ's assertion to the contrary, there are, with respect, significant differences between industrial disease and medical negligence claims, justifying a more claimant-friendly approach in the former. There, typically, the claimant is exposed to risk factors that, even if the defendant is only at fault for one, all ultimately derive from the workplace environment. By contrast, in medical cases, the doctor intervenes on behalf of the patient to ward off natural risks (stemming from illness), and the treatment itself usually adds to the risks in play; furthermore (as Lord Hoffmann noted in Fairchild) in the case of NHS care, allowing recovery in doubtful causation cases will affect the resources available for other patients. Even though the claim in Bailey was not ultimately against the NHS, and notwithstanding that the case was a very sad one, it is submitted that the Court of Appeal's approach to resolving it is not sustainable.