Chapter 6

Page 93
Bailey v Ministry of Defence [2008] EWCA Civ 883

The claimant sustained brain damage while under the care of a hospital managed by the defendants. She suffered a cardiac arrest due to aspiration of vomit and it was claimed that this would not have happened had she not been in a weakened state due to the defendant's earlier failures in her post-operative care. This breach was not disputed, however the appeal turned on the question of causation: namely had that breach been causative of her damage?

The Court of Appeal found in favour of the claimant and resolved the causation issue using the House of Lords decision in Bonnington Castings v Wardlaw (1956), which concerned disease caused by gradual inhalation of asbestos dust, some from a tortious and some a non-tortious source. Similarly, Bailey was treated as a case of cumulative causes which operated interdependently – the claimant's weakness was caused by her inherent physical vulnerability but also by the defendant's failings in care. Although it was not possible to establish the proportion of causation which would be attributed to the defendants; it was found that 'but for' their inadequate care the claimant would have been less weak and therefore their breach had materially contributed to her damage.

Page 93 (also relevant to Chapter 10: Employers' Liability)
Dickins v O2 plc [2008] EWCA Civ 1144

The approach to causation in Bailey v Ministry of Defence was considered in Dickins because two of the judges in the latter had also heard the former. The respondent was an employee of O2 who had suffered psychiatric injury which she claimed was due to the appellant's failure to address the stress she suffered at work. She was successful at first instance in her negligence action however her employers appealed the decision on four different counts; the relevant one for our consideration being that on causation. The stress that Ms. Dickins was under at work was only one of a number of contributing factors to her breakdown.

The unanimous Court of Appeal subscribed to the lead judgment by Lady Justice Smith who agreed that the trial judge had asked the wrong question: i.e. whether the employer's breach had 'at the very least' deprived her of a chance of recovery from her psychiatric illness. Instead the correct question should have been whether it made a 'material contribution'. Lady Justice Smith could see little difference between Bailey, where a finding of material risk justified the court in awarding full damages, and doubted the obiter view of Lady Justice Hale in Hatton v Sutherland [2002] citing Rahman v Aerarose [2001] that in cases of indivisible psychiatric damage with multiple indeterminate causes apportionment of damages would be appropriate. However the outcome would be not very different whichever question was asked and because the parties and the judge had prior agreement on apportionment of damages, should liability be found, the award of damages against the appellants of 50% of the total loss was upheld.

Page 94, para 6.2.4
Causation: exceptions to the ‘but for’ test
Environmental Agency v Ellis [2008] EWCA Civ117

The claimant seriously injured his knee in 2000 when his back gave way and he fell on a staircase. There were three contributing factors to the accident in 2000. Firstly, he was found to suffer from a degree of spinal degeneration unusual for a person of his age; secondly he had injured his back in an accident at work due to the negligence of his employers (the defendants) in 1998 and thirdly, he had also injured his back a second time in an accident unconnected with his employers, in 1999.

The case required the application of the ‘but for’ test to the injury of 2000; the injury being single and indivisible but with multiple causes. At first instance the trial judge accepted the fact that the accident in 2000 would not have happened ‘but for’ the accident in 1998 for which the employer was liable. The claimant was awarded 90% of his loss, with 10% was deducted due to the causative role (or lack of it) of the 1999 accident for which the defendant had no liability. Causation having been established, the damages award for loss of future earnings then took into account the fact that the degenerative condition would have ultimately reduced the number of years which the claimant would have been able to work.

The defendant employers appealed, contending that the apportionment on the basis of causation was unduly generous to the claimant, in that a causative role should have been included for the pre-existing spinal condition. This was rejected by the Court of Appeal, on the grounds that according to the thin-skull rule: liability cannot be reduced on the basis of a pre-existing vulnerability of the claimant. (see Smith v Leech Brain).

Mr. Ellis cross-appealed, claiming that 10% should not have been deducted for the 1999 accident. He was successful, due to the finding that the 1999 accident, for which the defendants were not to blame, was part of a continuum and neither broke a chain of causation nor reduced the ultimate causal effect between the 1998 and 2000 accidents. Proper application of the ‘but for’ test to the 1998 accident did not require a further inquiry into whether it was ‘the only, or the single, or even, chronologically the last cause of his injuries.’

The appellants had attempted to rely on a departure from the ‘but for’ test which was applied in the cases of Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086 and Allen v British Rail Engineering Ltd [2001] ICR 942. Here an apportionment of liability was imposed by the courts, on the basis that the asbestosis and vibration injury respectively were contracted in a gradually accumulating manner; thereby justifying division of liability between successive employers according to the length of employment with each. May LJ believed that this exception to the application of the all-or-nothing ‘but-for’ approach should be limited to cases of industrial disease or injury which was divisible between various causes, but this would not apply in the case at hand, in which the ultimate injury was indivisible.

Page 103
Corr v IBC Vehicles [2008] UKHL 13

The decision of the Court of Appeal upheld by the House of Lords

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Chapter 6