Is materials contribution restricted to divisible accidents? – UK Healthcare Regulation Weblog

I wrote an article in June final yr on materials contribution after the case of Davies v Frimley Well being NHSFT [2021] EWHC 169 QB. Since then one other first occasion choose has once more expressed obiter remarks on the subject within the case of Thorley v Sandwell and West Birmingham NHS Belief [2021] EWHC 2604 QB.

Like Davies, the choose in Thorley additionally expressed the view that materials contribution solely applies to divisible (within the sense of dose associated) accidents. This text addresses whether or not that precept is appropriate and considers the main authorities on the purpose – MoD v AB and Others [2010] EWCA Civ 1317 and Williams v Bermuda [2016] UKPC 4.

Terminology

As a former medic, even after 25 years on the Bar, I'm nonetheless shocked typically at how attorneys can take a basically pretty easy precept and over a few years complicate it in order that it turns into virtually unrecognisable and unintelligible.

A little bit like my favorite subject – Bolam and different checks for breach of responsibility – this space of legislation is affected by over-elaborate and inconsistent terminology. The 2 key phrases listed below are –

Divisible damage –

• one that's dose associated;
• the longer the publicity or the extent of the causative agent, the better the damage;
• for instance smoking inflicting bronchitis – the extra you smoke the more severe the bronchitis.

Indivisible damage –

• the alternative of divisible;
• not dose associated to the trigger;
• an damage which is ‘on/off’ – you both have it otherwise you don’t;
• for instance smoking inflicting lung most cancers.

By the best way, am I the one one who thinks ‘divisible’ really means ‘capable of being divided’, not ‘dose related’?

And in a causation sense means that you would be able to apportion totally different proportions of the general damage to totally different causes?

In that case, this once more illustrates the inconsistency and lack of logic to terminology utilized in materials contribution circumstances. In case you can apportion a proportion of the damage to the negligent trigger, then the Claimant solely recovers for that half and materials contribution doesn't apply as a check for causation – see para 134 of MoD v AB.

For the aim of readability subsequently, I'll use the time period ‘divisible (dose related) injury’, and I recommend you do too.

The case FOR the assertion that materials contribution solely applies to divisible (dose associated) accidents

MoD v AB and Others [2010] EWCA Civ 1317

The supply of this assertion is the Court docket of Attraction resolution in MoD v AB. 

You might recall that this was a limitation case involving atomic veterans; the Court docket was trying on the concern of causation in contemplating the power of the Claimant’s case as a result of this in flip was related as to if the Court docket ought to train its discretion underneath part 33.

Summarising the Defendant’s submission and referring to the fabric contribution check set out in Bonnington Castings v Wardlaw [1956] AC 613, Girl Justice Smith acknowledged at para 134 –  

“This method of proving causation (by showing that the tort made a material contribution to the condition or disease) is only available where the severity of the disease is related to the amount of exposure; further exposure to the noxious substance in question is capable of making the condition worse.” 

Later at para 150, Girl Justice Smith states –

“We accept that, at least so far as cancers are concerned, the claimants cannot rely on proving that the radiation exposure has made a material contribution to the disease, as in Bailey and Bonnington Castings. This principle applies only where the disease or condition is ‘divisible’ so that an increased dose of the harmful agent worsens the disease”.

Nevertheless there are two earlier circumstances through which Girl Justice Smith appears to have expressed the alternative view.

In Bailey v MoD [2008] EWCA Civ 883 she was a part of the Court docket of Attraction in, maybe, essentially the most definitive case on materials contribution, through which the Court docket of Attraction set out the circumstances through which it utilized and what the check was. The damage in Baileywas cardiac arrest and mind damage – so Girl Justice Smith and the Court docket of Attraction in that key case utilized materials contribution to what appears to be clearly an indivisible (not dose associated) damage.

As well as, Girl Justice Smith expressly thought-about that materials contribution utilized to indivisible (not dose associated) accidents in Dickins v O2 plc [2008] EWCA Civ 1144. She states at para 42, having quoted the fabric contribution check in Bailey,  and questioning why materials contribution didn't apply to the present case (psychiatric damage triggered partly by tortious stress at work) –

“My immediate reaction to the question of apportionment in the instant appeal was to wonder whether this case was any different from Bailey. Was this not a case of an indivisible injury (the respondent’s seriously damaged state following her breakdown) with more than one cause. It was not possible to say that, but for the tort, the respondent would probably not have suffered the breakdown but it was possible to say that the tort had made a material contribution to it. If that is correct analysis, should not the starting point have been that the respondent was entitled to recover in full?”

Moreover, it appears important to me that the Court docket of Attraction in MoD v ABhad been coping with a private damage declare (not a scientific negligence one which is the place materials contribution so usually appears to be related to causation) and in addition that they expressly acknowledged their judgment on the problem as being certified –“at least so far as cancers are concerned”, slightly than of common utility.

The case AGAINST the assertion that materials contribution solely applies to divisible (dose associated) accidents

Williams v Bermuda [2016] UKPC 4  (Privy Council)

This was the later case the place a delay in treating appendicitis leading to sepsis was claimed to have triggered damage to the Claimant’s coronary heart and lungs. It will definitely discovered its manner by way of the Court docket of Attraction to the Privy Council (being a case from Bermuda).

The case of MoD v ABwas not relied by the Defendant on this case, however Bonningtonwas – as a part of their argument that materials contribution couldn't be utilized by the Claimant within the case.

Giving judgment, Lord Toulson acknowledged at para 31 –

“As Professor Sarah Inexperienced has succinctly noticed (Causation in Negligence, Hart Publishing, 2015, Chapter 5, p 97):

            ‘It is trite law that, where possible, defendants should only be held liable for that part of the claimant’s final injury to which they'll causally be linked … It's equally trite that, the place a defendant has been discovered to have triggered or contributed to an indivisible damage, she will probably be held totally chargeable for it, regardless that there might nicely have been different contributing causes …’

In Bonnington there was no suggestion that the pneumoconiosis was ‘divisible’, which means that the severity of the illness relied on the amount of mud inhaled.”

This seems to recommend that the precept relied on, that in Bonnington the damage was thought to be a divisible (dose associated) damage and that materials contribution is subsequently restricted to such accidents, isn't appropriate.

And there's a footnote –

“In later cases it has been the accepted view that pneumoconiosis is a ‘divisible’ disease, its severity being dependent on the quantity of dust inhaled; and, therefore, where there has been more than one source of toxic material, the extent of the liability of a defendant responsible for part of the exposure should reflect the degree of injury suffered by the Claimant as a result of that exposure. See the judgment of Lord Phillips of Worth Matravers in Sienkiewicz v Grief (UK) Ltd 2011 2 AC 229, para 90: ‘Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible’.”

This Privy Council judgment subsequently in my opinion gives robust assist for materials contribution not being restricted to divisible (dose associated) accidents.

Conclusion

My interpretation of the case legislation over the past 60 years is that it overwhelmingly helps materials contribution not being restricted to divisible (dose associated) accidents in scientific negligence circumstances, that there isn't a such restriction and that, as soon as the ‘But for’ check doesn't apply (see Bailey), materials contribution is of common utility.

That view is supported by my expertise at trial; I gained a contested materials contribution argument shortly after Bailey.

It's also of observe that the 2 most vital circumstances on materials contribution –Bailey and Williams– didn't themselves contain clearly dose associated accidents – cardiac arrest and mind damage in Bailey and coronary heart and lung damage in Williams. If there was such an vital limitation in utility of the precept, you may it count on it to have featured in these two vital circumstances.

It could be that considered one of these first occasion circumstances will probably be appealed and the rules clarified. It's actually an space of legislation crying out for clarification, slightly than extra confusion.

Lastly, a plea. Materials contribution is a vital check for causation in scientific negligence circumstances. It has traditionally been underused because of the confusion which has grown up round it. It's time to demystify it as a precept, be clear within the terminology we use and argue it the place acceptable with confidence.