Clinical negligence legal blog: Williams v Bermuda Hospitals Board – “material contribution” & causation

The facts

Mr Williams attended A&E complaining of abdominal pain. A scan was ordered but there was a negligent delay before the scan was undertaken. It transpired that Mr Williams was suffering from appendicitis and required urgent surgery to remove his appendix.

During the surgery it was discovered that Mr Williams’ appendix had ruptured and there was a large accumulation of pus which led to damage to his heart and lungs.

The trial judge found that as a result of the hospital’s negligence Mr Williams’ operation had been carried out at least 2 hours and 20 minutes later than it should have been.

However, the trial judge found for the hospital on the basis that Mr Williams had failed to prove that the complications were most probably caused by the delay in treatment. In other words, Mr Williams had failed to prove that his outcome would have been different if the surgery had been carried out earlier.

The Court of Appeal of Bermuda overturned the decision on the basis that the delay in treatment had “materially contributed” to the injuries which Mr Williams sustained.

The hospital board appealed. However, the Privy Council rejected the appeal, finding that the Court of Appeal had been entitled to conclude that the complications were the “product of a steadily worsening accumulation of sepsis over several hours, which was caused in part by the negligence of the hospital board”.

On the balance of probabilities the delay of at least 2 hours and 20 minutes “materially contributed to the process, and therefore materially contributed to the injury to the heart”.

“Material contribution” – a different approach to causation?

The usual approach to the issue of causation is to identify the effective cause of the injury by the application of the “but for” test i.e. would the Claimant’s injury have occurred “but for” the Defendant’s breach of duty?

However, in the case of Bailey v Ministry of Defence [2008] the Court of Appeal held that in certain circumstances the “but for” test is modified and the usual approach does not apply.

In this case Mrs Bailey was operated on for a gallstone problem. Following that operation there was a lack of adequate care. She also developed an acute pancreatitis but this was not as a consequence of substandard care. A few days after the operation Mrs Bailey was in a weakened state, partly as a result of the lack of care and partly due to the pancreatitis. In that weakened state Mrs Bailey aspirated her own vomit which led to a cardiac arrest and which in turn caused her to suffer hypoxic brain damage.

The trial judge had identified 2 causes of the Claimant’s weakened state namely the lack of care and the pancreatitis but was unable to say which had made the greater overall contribution. What he did find was that each contributed materially to Mrs Bailey’s overall weakness and he therefore found for Mrs Bailey on the basis that it was sufficient for the Defendant’s negligence to have “materially contributed” to Mrs Bailey’s weakened state and it was that weakened state which had subsequently caused her to aspirate on her own vomit (in turn leading to the cardiac arrest and brain damage).

The Court of Appeal upheld the trial judge’s findings on the basis that “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 negligence was more than negligible, the “but for” test is modified and the Claimant will succeed”.

The Privy Council in Williams has essentially supported the Court of Appeal decision in Bailey and significantly it seems extended the application of “material contribution” to cases not only involving those where the Defendant’s negligence has materially contributed to the cause of the actual injury sustained (i.e. the weakness in Bailey which ultimately resulted in Mrs Bailey’s brain injury) but those where the negligence has materially contributed to the injury itself (i.e. the damage to Mr Williams’ heart and lungs caused by the steadily worsening accumulation of sepsis which went on for at least 2 hours and 20 minutes longer than it should have).

“Divisible” and “indivisible” injury

The law in this area (as in other areas) distinguishes between injuries which are “divisible” and “indivisible”.

Although it was not made explicit it would seem that the Privy Counsel in Williams found that the injury sustained by Mr Williams was “indivisible” i.e. it was not possible to distinguish the extent of the injury which Mr Williams would have sustained in any event from that which resulted as a direct consequence of the 2 hours and 20 minute delay in his operation being carried out.

In these circumstances, provided that it can be established that the Defendant’s negligence “materially contributed” to the cause of the injury then the Defendant will be liable in full.

Contrast this with injuries which are found to be “divisible”. The case of Tahir v Haringey Health Authority [1998] provides a good example. The trial judge found that there was a negligent delay of 3 hours in the treatment of a 15 year old boy who had a spinal abscess which resulted in some permanent paralysis. However, the Claimant had not adduced any evidence as to what his outcome would have been in these circumstances (his case was that the period of negligent delay was 24 hours and that his injuries would have been avoided in their entirety) and so the Court of Appeal overturned the trial judges decision that the delay had caused £4,000 worth of damage. However, the Court of Appeal clearly accepted that the hospital would only have been liable for such proportion of the injury as was caused by the negligent delay.

The importance of the Tahir decision is that where in a clinical medical negligence case part of the damage occurs before the negligence starts to cause damage, and part after that, the Defendant is not liable for the whole of the injury sustained (providing that the Court is satisfied that the injury truly is “divisible”).

Conclusions to be drawn

The decision in Williams will potentially have implications for many kinds of clinical negligence claims including cases involving birth injuries and delayed diagnosis of an illness such as cancer.

For example, let’s assume that in a birth injury case it is established that it was mandatory to have delivered a baby by 12:00 instead of 12:05 as in fact happened. However, even if delivered at 12:00 some damage might have been sustained in any event but it is not possible to say how much. In other words, the damage sustained as a result of the negligent delay was that in the 5 minute period between 12:00 and 12:05. Any damage sustained prior to this time was not caused by any negligence.

In light of the Privy Council’s decision in Williams it strikes me that providing the evidence can establish that the negligent period of delay caused some (or all) of the cerebral palsy (i.e. that it made a “material contribution” to the adverse outcome) then the claim will succeed and damages awarded for all of the losses suffered. The injury in these circumstances is “indivisible”.

However, if the evidence establishes that delivery at 12:00 would have resulted in damage to the cognitive functions but none yet to mobility functions it would be open to the Defendant to argue that the Claimant was entitled to damages relating to his mobility dysfunction but not for losses associated with his cognitive difficulties. In these circumstances that Claimant would not be entitled to recover the full value of the claim and would only be compensated for the additional injury caused by the negligent delay. In these circumstances the injury is “divisible”.

It would therefore appear that the distinction between “divisible” and “indivisible” injury in this complex area of law will be crucial in determining the extent of a Defendant’s responsibility to compensate a Claimant for the injuries sustained.