medical negligencee

Introduction

The decision in Bailey v Ministry of Health raises important issues in relation to the causation concept of ‘material contribution to harm’ and its application in the context of medical negligence. The Court of Appeal considered this test of causation is a departure of the normal but for causation rule and appeared to have made the correct ruling that the causation in this case was satisfied as the tortious negligence made for a sufficient connection to be liable. However, while the outcome seems to be accurate, the Court in concluding that material contribution to harm is a departure to but for rule is not convincing. Waller LJ’s remark that ‘one cannot draw a distinction between medical negligence cases and others’ also deserves distinct attention. While it is applicable to the case of Bailey, this argument was a flawed analogy and there are also strong policy concerns for the justification. The law of causation has long been a problematic area that attracts clarification. Thus, in view of the inherent obscurity in causation problems, the court is bounded to employ a clearer principle in order to uphold consistency and coherence in this doctrine.

Relationship between Bailey case and but for causation rule

The basic rule of causation is the but-for test which requires the claimant to show that but for the defendant’s breach of duty, he would probably not have suffered from the damage. Causation was satisfied in most cases which do not give rise to difficulty. Problem arises, however, in cases which involved two or more causes which have contributed to the undesirable outcome in respect of which injury are claimed. These problems have led to the departure of the normal but-for rule in certain circumstances.

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...ctrine to concrete factual scenarios. Departing from the normal but-for test requires strong policy justification. Where departures are to be made, the criteria need to be articulated. It would be most undesirable to allow exceptions to be made via a board ‘material contribution’ doctrine applied as a matter of judicial instinct rather than detailed reasoning and justification. In any event, the making of exceptions in practice cannot be achieved without drawing distinctions that can usually be attacked as arbitrary. If the law on causation is to become clear, and to ensure the consistency and coherence of future developments, then it is essential that the courts are stringent in their analysis of causal problems in the developing causal vocabulary. A position whereby but-for causation has normally to be satisfied, subject to clearly defined exceptions, seems best.