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Published online by Cambridge University Press: 06 July 2018
This paper reviews the status of the principle that a claimant can demonstrate a causal link between the defendant's wrongful act or omission and his or her damage by establishing that the act/omission made a ‘material contribution’ to the damage. This principle has been reviewed, in the context of cumulative causes that cannot be ‘compartmentalised’, by the Privy Council in Williams v The Bermuda Hospitals Board. There, the Privy Council regarded the cases of Bonnington Castings v Wardlaw (leaving aside the point as to the divisibility of the disease pneumoconiosis), Bailey v Ministry of Defence and Williams itself as essentially similar to each other. They were to be regarded as cases where the court was entitled to conclude that it was the totality of the exposures/delay in question that caused the ultimate harm. As regards Bailey, this was said in terms not to involve any modification of the but-for test; presumably the same holds good for Bonnington Castings and Williams itself. So orthodoxy appears to be preserved/restored. But is that so?
A version of this paper was presented at the SLS Conference Torts Section at Oxford in September 2016. I am grateful for comments on earlier drafts by Richard Hyde, Donal Nolan and Stephen Todd, by participants at the session, and by the anonymous reviewers. Responsibility for the final version rests with me.
1 [1956] AC 613.
2 At 620.
3 These issues are considered in a number of recent monographs on causation in tort: Steel, S Proof of Causation in Tort Law (Cambridge: Cambridge University Press, 2015) pp 239–248CrossRefGoogle Scholar; Green, S Causation in Negligence (Oxford: Hart, 2015) ch 5Google Scholar; Turton, G Evidential Uncertainty in Causation in Negligence (Oxford: Hart, 2016) pp 66–79Google Scholar.
4 [2008] EWCA Civ 883, [2009] 1 WLR 1052.
5 See below nn 72–80.
6 [2016] UKPC 4, [2016] AC 888.
7 The NHS Litigation Authority entered submissions as interveners in Williams, notwithstanding the case's origins in Bermuda.
8 Bailey, SH ‘Causation in negligence: what is a material contribution?’ (2010) 30 LS 167Google Scholar.
9 [2002] UKHL 22, [2003] 1 AC 32. Here the House of Lords held that it was just to make an exception to the normal rule in a case where the claimant developed mesothelioma as the result of exposure to asbestos dust, but was unable to establish which of a number of employers who had wrongfully exposed him to such dust was responsible for the dust that actually triggered the condition.
10 The difficult cases are those of over-determination (for example where there are multiple causes of damage each of which alone is sufficient to cause it; or where a threshold needed to produce an effect is oversubscribed) and pre-emption, where one sufficient cause prevents another sufficient cause from taking effect. See generally, Steel, above n 3, ch 1; Turton, above n 3, ch 2; Stapleton, J ‘Unnecessary causes’ (2013) 129 LQR 39Google Scholar.
11 The recent literature includes essays by Wright and Miller in Goldberg, R (ed) Perspectives on Causation (Oxford: Hart, 2011) chs 14, 15Google Scholar. Steel and Turton, above n 3, argue for the adoption of forms of the NESS approach. Green, above n 3, argues the case for a novel approach, which she terms ‘necessary breach analysis’.
12 Stapleton, J ‘An “extended but-for” test for the causal relation in the law of obligations’ (2015) 35 OJLS 697 at 713Google Scholar; Steel, above n 3, pp 42–43; Stapleton, above n 10, at 54–61.
13 Steel, above n 3, p 240. See also Steel's chapter in Oliphant, K (ed) The Law of Tort (London: Lexis Nexis Butterworths, 3rd edn, 2015) para 14.12 ffGoogle Scholar.
14 The same point is made by Turton, above n 3, pp 65–73, writing of what she appears to regard as a single ‘material contribution’ rule.
15 [2000] ICR 1086. See nn 40–50.
16 This involves a variant of the NESS test. See n 11.
17 Above n 4. Steel, above n 3, pp 244–246 is highly critical of Bailey. See nn 66–68.
18 See John, below nn 113–130.
19 See nn 124–127.
20 See nn 40–50, 128–130.
21 [1956] AC 613. See Bailey, above n 8; Steel, above n 3, pp 222–224.
22 See Lord Reid's comment, above n 2.
23 Expressed in Bailey, above n 8.
24 ie from hammers (non-tortious) and swing grinders (tortious).
25 Condescendence II; Pursuer's Proof p 9. The words ‘early pneumoconiosis’ appeared on a card dated 15 May 1950.
26 Pursuer's Proof p 23.
27 This disease progresses even in the absence of further exposure to noxious dust.
28 Lord Wheatley, 1955 SLT 225, 232.
29 [1956] AC 613 at 626.
30 This can be explained as follows. The onset of the disease was caused by the combination of the tortious and non-tortious dust. Had the defendants complied with their statutory duty, only the non-tortious dust would have been present. Mr Wardlaw would have continued to work and would probably developed pneumoconiosis at a later date; there was also a possibility that he might never have developed the disease (the scenario Lord Keith had in mind here is not clear (Mr Wardlaw leaving his employment for other reasons?), but it does not seem relevant).
31 There was evidential uncertainty in that the exact respective proportions of tortious and non-tortious dust could not be identified, but that is not material as the whole of the dust was regarded as the cause, and a more-than-de minimis contribution was sufficient. Whether there would have been sufficient evidence to make a rough-and-ready apportionment under Holtby (nn 40–50) is a matter of conjecture.
32 By contrast, Miller, C ‘Causation in personal injury after (and before) Sienkiewicz’ (2012) 32 LS 396 at 398–399Google Scholar regards the Bonnington ‘material contribution’ principle as providing a solution to cases of over-determination and for that reason is critical of the position taken in the 2010 paper, above n 8. It is submitted that this is an over-reading of the case. It is of course recognised that the but-for test does not produce a just outcome in some cases of over-determination or pre-emption, certainly where there are multiple sufficient tortious causes. But these problems need to be addressed directly by analysis rather than by invocation of the expression ‘material contribution’; it will always be necessary to give reasons why a ‘contribution’ should be regarded as ‘material’ in such a case. English law already recognises a but-for exception where there are multiple sufficient tortious causes: Greenwich Millennium Village Ltd v Essex Services Group plc [2014] EWHC 1099 (TCC) (an issue not raised in the Court of Appeal: [2014] EWCA Civ 960).
33 This quotation is from Cox J in Mayne v Atlas Stone Co [2016] EWHC 1030 (QB), para [18].
34 Variant 4, above n 18.
35 Green, above n 3, p 97. This passage was cited with approval by the Privy Council in Williams: see below n 93.
36 This point has recently been strongly reinforced by the decision of the Court of Appeal in BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188, where it was held that the EAT had been right to find that the claimant's psychiatric illness was not divisible; per Underhill LJ at para [71]: ‘the exercise is not concerned with the divisibility of the causative contribution but with the divisibility of the harm’.
37 See Hale LJ in Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613, para [42].
38 Ibid.
39 Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; Allen v British Rail Engineering Ltd [2001] ICR 942.
40 [2000] ICR 1086.
41 Holtby, above n 40, at para [7].
42 See Holtby, above n 40, at para [11] where the arguments are summarised. Clarke LJ dissented on the second point.
43 Holtby, above n 40, at paras [23], [25].
44 Or indeed fell in between other tortious exposures or to any extent overlapped with them.
45 It is unlikely that subsequent exposures would have been unforeseeable; it is difficult to see why they should amount to a new intervening cause. A reduction in damages on the basis that D was not liable for subsequent exposures was, however, expressly made by Smith J in Allen, above n 39, but not challenged: see paras [4], [5].
46 Holtby, above n 40, at para [5].
47 Possibly arising on the facts of Holtby; an unchallenged finding of the trial judge in Allen.
48 Above n 36.
49 See eg Smith LJ in Ministry of Defence v AB [2010] EWCA Civ 1317 at [134]; Lord Bingham in Fairchild at para [14], where he referred to Bonnington as a case where the employer was ‘potentially liable for the balance’ (ie the tortious dust only).
50 Cf the arguments that Bonnington involves an exception to but-for causation made in the claimants interests.
51 The test subsequently adopted in McGhee v NCB [1973] 1 WLR 1, HL, expressly recognised as a but-for exception in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 per Lord Bingham at paras [17]–[22].
52 Cf above n 11. Steel, above n 3, pp 243, 244, states that only an ‘incautious’ reading of Bonnington would support such an interpretation, although such a reading had been adopted in Bailey (see nn 66–68).
53 Prior to Bailey there were dicta in individual opinions that indicated, or stated in terms that Bonnington Castings stood for a special exception to the need to prove but-for causation. See eg Lord Rodger in Fairhild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 at [129].
54 [2008] EWCA Civ 883, [2009] 1 WLR 1052.
55 [2007] EWHC 2913 (QB), at para [61].
56 Bailey, above n 8, pp 183–184.
57 [2008] EWCA Civ 883 at [31]–[34], [36].
58 [2008] EWCA Civ 883 at [46].
59 ie Hotson v East Berkshire Health Authority [1987] AC 750. Here, a doctor's misdiagnosis was held not to have caused a disability which, by the time the patient was seen by the doctor, was probably going to happen anyway.
60 Cf criticism of such a distinction by McLachlin CJ in Clements v Clements 2012 SCC 22, at para [38].
61 This would fall within Variant 4 of ‘material contribution’: see n 18.
62 See above nn 40–50.
63 Steel would seem to take a similar view: above n 3, pp 245–246.
64 [2008] EWCA Civ 883, at para [42].
65 But see above nn 35–50.
66 Above n 3, pp 244–245. See also the case notes cited at Bailey, above n 8, at fn 84. Green, by a different route, also argues that no liability should have been found in Bailey: above n 3, pp 107–109.
67 Above n 3, pp 3–4, 5.
68 Above n 3, pp 378–384. See also, to similar effect, Stapleton, above n 10, at 50–54, 57–58. Stapleton (at 50) interprets the facts as involving over-determination; a threshold point of physical weakness had become oversubscribed before the vomit came on the scene (cf her comment at 57 that ‘it may have been that the pancreatitis alone’ would have been sufficient). However, the claimant could not show that the cardiac arrest represented ‘damage’, although the point had not been taken.
69 Above n 3, pp 69–71, 74–75, 76–77.
70 Stapleton, above n 10, at 53 regards Bonnington and Bailey as ‘quite different’ for this reason.
71 Above n 3, pp 24–29.
72 See eg. Leigh v London Ambulance Service NHS Trust [2014] EWHC 286 (QB). Here, L was accidentally trapped between seats on a bus and suffered severe pain; an ambulance was called at 19.02 and should have arrived by 19.33 but there was a negligent delay until 19.50. L developed PTSD and claimed there was a sufficient causative link between the negligent delay and the PTSD. Globe J applied Bailey and held D liable (and awarded £0.5m) even though but-for causation could not be established. However, he also seemed to accept the opinion of the claimant's expert that the PTSD developed ‘as a consequence of one indivisible event on the bus, as to which it was the whole time that was relevant’: paras [15], [18]. If so, this would make the case analogous to Williams and to Bailey as interpreted in Williams: see below nn 93–105.
73 Aspinall v Secretary of State for Health [2014] EWHC 1217 (QB) (injury would probably have happened anyway).
74 Nyang v G4S Care and Justice Services Ltd [2013] EWHC 3946 (QB) (acts of negligence of staff responsible for at-risk detainee at immigration removal centre held not to have caused (self-inflicted) injuries to G; but-for test applied; Bailey not applicable as the present case was not based on ‘inadequacies in the state of medical science’ (para [100]); while there had been negligence in a failure to carry out a sufficiently thorough mental health examination, there had not been time for the medication that should have been prescribed to take effect so as to prevent the incident); Baker v Cambridgeshire and Peterborough NHS Foundation Trust [2015] EWHC 609 (QB) (no breach of duty in failure of psychiatrist to refer B to community mental health services; but-for test, not Bailey, applicable to determine whether such failure caused B's suicide as limitations of medical science not relevant); Chetwynd v Tunmore [2016] EWHC 156 (QB) (material contribution approach in disease and clinical negligence cases not to be extended to claims in negligence or nuisance between adjacent landowners). The fact that Nyang and Baker were not cumulative cause cases was not relied on.
75 Bailey Proposition A. See Mugweni v NHS London [2012] EWCA Civ 20 (M's brain damage probably the non-negligent consequence of operation rather than tension pneumothorax (PNT) (air collecting in pleural cavity) leading to cardiac arrest; not shown that the PNT and cardiac arrest itself (which was dealt with quickly) added to the damage therefore Bailey material contribution rule could not apply); King v Medical Services International Ltd [2012] All ER (D) 27 (Apr) (QB); Appleton v Medway NHS Foundation Trust [2013] EWHC 4776 (QB) (no liability where there was negligence in treating an infection but not shown that that infection played any part in making leg amputation necessary; this was wholly caused by M's diabetes); ST v Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 51 (QB); Owens v Medway NHS Foundation Trust [2015] EWHC 2363 (QB), paras [122]–[123].
76 Bailey Proposition B. See eg Ganz v Childs [2011] EWHC 13 (QB) (liability of GPs for negligent failure to refer patient to hospital); Lyndon v Royal Free Hampstead NHS Trust [2011] EWHC 2904 (QB); Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016 (QB), para [71]; Pringle v Nestor Prime [2014] EWHC 1308 (QB); Coakley v Rosie [2014] EWHC 1790 (QB). Gardner v Northampton General Hospital NHS Trust [2014] EWHC 286 (QB) can arguably be seen as such a case in that satisfaction of the but-for test was adopted as a fall-back position.
77 Canning-Kishever v Sandwell and West Birmingham Hospitals NHS Trust [2008] EWHC 2384 (QB); Ingram v Williams [2010] EWHC 758 (QB), paras [80]–[87] (but no breach of duty found); Barnett v Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) (but no breach of duty found).
78 Reaney; Coakley, para [118]; Pringle; Gardner; Hayes; Leigh.
79 [2008] EWHC 2384 (QB).
80 Para [37].
81 [2016] UKPC 4, [2016] AC 888.
82 [2013] SC (Bda) 1 Civ.
83 [2013] CA (Bda) 2 Civ, (2014) 84 WIR 155.
84 See [2016] AC 888 at 891–897; a podcast of the oral arguments was available on the Privy Council website.
85 Caroline Harrison QC, who appeared with Andrew Bershadski.
86 This is put forward as different from satisfying the but-for test but, given the reference to the injury being divisible, it is difficult to see how this is so.
87 The claimants did not rely on Fairchild.
88 In the oral submissions it was said that nobody knew how much sepsis was needed to cause the injury. This point is not adverted to by the Privy Council.
89 Benjamin Browne QC, appearing with Luka Krsljanin.
90 Lord Toulson at para [24] noted Mr Browne's argument that the Court of Appeal had been entitled to conclude that the overall time allowed by the judge had been too long; surgery ought to have commenced by 17.15 or at the latest 18.10. (On either basis, the period of non-negligent delay after 15.19 through which sepsis had been developing would have been shorter than the period of negligent delay). On these facts ‘the Court of Appeal were entitled to infer that the greatly extended period for the development of sepsis materially contributed to the outcome’.
91 Rather than a ‘single causative agent’ though it seems to require a single ‘factor’.
92 It will be noted that this provides a further version (Variant 5) of ‘the material contribution rule’, namely that, provided the preconditions are fulfilled, the court may draw an inference of material contribution on the facts even though science in itself cannot go that far. However, while it says when an inference of ‘material contribution’ can be drawn, it leaves the nature of that contribution (is it a but-for contribution?) obscure. The final comment suggests that it is. Counsel did not place major reliance on Bailey.
93 See paras [31]–[34]. At para [31], Lord Toulson cited Green's observations set out above at n 35.
94 Para [35].
95 Para [41].
96 Para [42].
97 Lord Toulson at para [43] found it unnecessary to resolve the factual dispute about the length of the period of culpable delay.
98 Paras [46]–[47]. This was obiter, given that liability was found established without any need to rely on Bailey Proposition C.
99 eg Nolan, D and Oliphant, K Lunney, Nolan and Oliphant, Tort Law (Oxford: Oxford University Press, 6th edn, 2017) p 234Google Scholar. Steel, S and Stapleton, J ‘Causes and contributions’ (2016) 132 LQR 363 at 367Google Scholar state that a similar principle can operate in the factual causation context, but that reference to the remoteness principle in the factual causation context ‘may well muddy the waters’.
100 Steel and Stapleton, above n 99, at 366, assert that in Bailey ‘it had not been established on the balance of probabilities that, absent [the negligent] contribution to her weakened state, she would have been able to deal with her vomit’. It is submitted that Lord Toulson simply took a different view on this point. Nolan and Oliphant, above n 99, p 235, state that Williams cannot properly be interpreted as involving an application of the but-for test as the trial judge had refused to make such a finding. It is submitted, with respect, that this seems to overlook the point that an appellate court on an appeal is entitled to draw different inferences from the primary facts from those drawn by the trial judge: Benmax v Austin Motor Co Ld [1955] AC 370 per Lord Reid at 375–376.
101 Bonnington was to be treated as an indivisible injury case as the divisibility point was not raised: see Lord Toulson at para [32]. It has been submitted above (nn 35–50) that it is properly to be regarded as a case of indivisible injury apart from the question whether damages should only have been awarded for the advancement of the disease.
102 Reliance on this distinction by counsel for the defendants rested on the assumption that Bonnington was a special exceptional rule applicable where the but-for test was not satisfied.
103 See n 13.
104 See n 17.
105 The ‘special conditions’ mentioned by Benjamin Browne QC were not referred to and cannot be taken to have been either endorsed or rejected.
106 Foster, C ‘A material contribution to forensic clarity’ (2016) 166 NLJ 7689Google Scholar: ‘“material contribution” is just one way of expressing true, “but-for” causation in certain sets of factual circumstances’ (at 10). Cf M White (2016) PILJ 11 (Williams approves Bailey but Bailey is based on but-for causation).
107 S Green ‘Q: when is a material contribution not a material contribution? A: when it has not been proven to have made any difference to the claimant's damage’ [2016] PN 169.
108 M Lyons ‘Case Comment’ [2016] JPIL C75. The claims of ‘progress’ for patients is not borne out by the decided cases (see nn 78–86). Also welcoming is Hobson, C ‘Williams v The Bermuda Hospitals Board: pro-patient, but for ambiguities which remain’ (2017) 25 Medical Law Review 126CrossRefGoogle Scholar.
109 J Plunkett ‘Causation in asbestos-related lung cancer claims’ (2016) PN 158 at 162. This echoes Variant 3 of ‘material contribution’: above n 17. Nolan and Oliphant, above n 99, pp 234–235, state that a principle along these lines seems to be the best way of explaining the results in Bailey and Williams, but that it is difficult to discern such a principle from the reasoning in them.
110 Stapleton and Steel, above n 99. Accordingly, the award of damages in Williams was only supportable if but-for causation had been established.
111 [2016] EWCA Civ 86.
112 At para [23].
113 [2016] EWHC 407 (QB).
114 Para [82].
115 See paras [89], [92]. Counsel for the defendants seemed to accept that the tortious inter-cranial pressure had caused some brain damage.
116 It is submitted that this concession should not have been made, given the weakness of the authority to justify this position, although it is consistent with the dictum in Heneghan, above n 111.
117 Version 4(1) of ‘material contribution’: see n 21.
118 Para [98]. Version 4(2) of ‘material contribution’: see n 21.
119 Above nn 8, 21–31.
120 Wilsher v Essex Area Health Authority [1988] AC 1074, HL.
121 Picken J cited Lord Bridge in Wilsher at 1081–1082.
122 See further n 133.
123 For powerful criticism of the ‘single agent’ rule as it applies in Fairchild cases see Wellington, K ‘Beyond single causative agents’ (2013) 20 Torts LJ 208Google Scholar.
124 Para [98].
125 Cf n 51.
126 [2006] UKHL 20, [2006] 2 AC 572.
127 The Compensation Act 2006, s 3 reverses Barker only in cases of mesothelioma: Heneghan, above n 111.
128 Above nn 40–50.
129 Per Stuart-Smith LJ at para [20].
130 Picken J at paras [99]–[100].
131 Six distinct variants have been identified: see nn 13, 16, 18, 92.
132 This is not of course necessary; it is enough that the judge is satisfied that the non-tortious factors are not sufficient alone to cause the damage.
133 This is the position adopted by Clarke LJ (dissenting) in Holtby, above n 40, paras [34]–[37] and Picken J in John, above n 113. It is supported by Green, above n 3, pp 95–96, but not Steel, above n 3, pp 244–246.
134 John, above n 113.
135 Chetwynd, above n 74.
136 Above n 16.