Material contribution. An update

In a recent post I wrote about the potential significance of the Privy Council decision in the case of Williams v Bermuda Hospitals Board insofar as “material contribution” and causation arguments are concerned.

The recent High Court decision in the case of Dr John v Central Manchester & Manchester Children’s University Hospitals NHS Foundation Trust seemingly underlines the importance of the Privy Council’s Judgment in Williams.  

The facts

Dr John was a 44 year old successful GP. Following a night out with friends, he returned to his flat at about 4am, lost his footing as he was climbing some stairs in the common hallway and fell backwards. Two hours or so later, he was found by a neighbour, another doctor. He had vomited and was unable to say anything intelligible. An ambulance was called and Dr John was taken to Manchester Royal Infirmary (the MRI), for which the defendant was responsible.

Dr John was admitted to the MRI at about 6.52 am, where he was triaged and seen by an A&E doctor who compiled a management plan which included the claimant undergoing a CT scan on his brain. In the event, that CT scan was not performed until 1.12 pm. When the scan was performed, it showed the presence of an acute subdural haematoma on Dr John’s brain. While he was being assessed he had a seizure. He was supposed to be transferred to another hospital for brain surgery however there was a delay in the transporting ambulance arriving. Dr John was eventually operated on, but with a delay of several hours, his operation eventually being carried out at around 7.30pm.  

Following the operation his recovery was complicated by a post-operative infection.

Ultimately, Dr John was left with a number of cognitive and neuropsychological deficits which meant that he would never be able to work again as a GP.

Dr John brought a case in negligence against the defendant Trust. The Trust denied liability and took issue also with causation.

Breach of Duty

In short, the Judge found that on the facts, a CT brain scan should have been performed by 10am at the latest. Accordingly, the failure to carry out the CT scan until 1.12pm was negligent.

Factual causation

The Judge held that with appropriate medical treatment Dr John would have undergone surgery at about 1.45pm.  

Accordingly, in these circumstances Dr John would not have suffered from the effects of raised intra-cranial pressure for between 5.75 hours and 6 hours

Medical causation

The Judge then turned his attention to the issue of ‘medical causation’ – specifically whether Dr John’s injury was attributable (in a legal sense) to the Defendant’s breach of duty.

There was a significant dispute between the Parties concerning the appropriate legal test.

Dr John’s case was that (in reliance on the Court of Appeal decision in Bailey v MOD) this was a case in which the classis ‘but for’ test of causation could not operation since the expert medical did not permit for a ‘but for’ assessment to be made. Dr John also drew the Court’s attention to the Privy Council decision in Williams, which, fortunately for him was decided only a week before his own claim was heard by the Court.

Applying the approach of the Court in Bailey and Williams, Dr John argued that he was entitled to succeed in full against the Trust if he was able to show that that Trust’s negligence resulted in a period of delay during which he suffered from damaging raised intra-cranial pressure which ‘materially contributed’ to his brain damage and in these circumstances causation was proven.

On behalf of the Trust it was submitted that the approach suggested by Dr John was incorrect as a matter of law. The Trust argued that if there was raised intra-cranial pressure attributable to the their negligence then that was merely one of a number of factors – the others being the initial head injury and the post-operative subdural infection – which may have caused Dr John’s brain damage. On this basis, it was argued that the ‘but for’ test of causation was the correct test to apply and that it was therefore not sufficient for it to be established by Dr John merely that the raised intra-cranial pressure made a ‘material contribution’ to the brain damage which he suffered.

Further, it was argued on behalf of the Trust that the ‘material contribution’ approach described in the Bailey and Williams cases was inapplicable to Dr John’s case as Bailey and Williams were cases in which a ‘single agency’ was involved rather than multiple factors such as in Dr John’s case.

The Trust also sought to argue that  were the Court to conclude that the raised intra-cranial pressure materially contributed to Dr John’s injury that the Court should then go on to apportion damage between the negligent and non-negligent causes. In other words, the Trust contended that even if the Trust’s negligence had materially contributed to Dr John’s injury this did not automatically entitle him to compensation for the totality of his injuries without reduction. The Trust argued that this would be “a significant injustice” as it would require the Trust to compensate Dr John for injuries which it “manifestly it could not have caused as they either preceded any negligence or post-dated any negligence by at least a week”.

The Court’s decision

The Court held that the ‘material contribution’ approach applies just as much to ‘multiple factor’ cases as it does to ‘single agency’ cases.

It also found that if the ‘material contribution’ test has been satisfied then causation is made out and that if the evidence is such that it is not possible to attribute particular damage to a specific cause, a Claimant must be entitled to recover in respect of the entirety of his or her loss.

As the medical experts agreed that it was impossible to separate out the relative contribution of each pathology but that if it was decided that there was a period of raised intra-cranial pressure then that made a ‘material contribution’ to Dr John’s outcome, the Court concluded that Dr John had established causation and that he was entitled to recover damages without deduction.

Implications

This is a very important decision and one which all clinical negligence lawyers should be aware as it seemingly confirms the approach that will now be taken post Williams to cases involving ‘material contribution’ arguments.

In this regard, it would seem that the application of ‘material contribution’ is equally applicable to sequential or cumulative causes of injury (as in Mr Williams and Dr John’s cases) as well as in cases where separate simultaneous causes have resulted in an indivisible injury (as in Bailey).