Material Contribution – the next chapter


By Sally Cowen

The Privy Council has (25/1/2016) given judgment in Williams v Bermuda Hospitals Board [2016] UKPC4, giving greater clarity on the issue of when a material contribution occurs.

Previously Bailey v Ministry of Defence in the Court of Appeal had indicated that ‘material contribution’ occurred where there were multiple causes of injury which occurred simultaneously. From now on, we have the approval of the Privy Council to acknowledge material contribution, where the events are sequential.

In the facts of Williams the Claimant went to hospital with abdominal pains. He was suffering from acute appendicitis. He underwent an appendectomy later in the day, but after some degree of delay. During surgery it was noted that there was widespread pus throughout the pelvic region.  The accumulation of this pus resulted in myocardial ishchaemia.  During surgery he suffered a myocardial ischaemic event, leading to lung complications, which required life support in the intensive care unit, although he ultimately made a good recovery. It was held that the sepsis from the ruptured appendix caused injury to his heart and lungs. However, the issue was whether there was further injury as a result of the delay.

The trial judge held that “had the CT scan been obtained and interpreted promptly these complications might have been avoided, but I am not satisfied that they probably would have been avoided”. The trial judge held that the Claimant had not proved that the delay caused the complications.

The Court of Appeal reversed that decision, holding that the trial judge had raised the bar “unattainably high” in saying that the Claimant had failed to prove his case.  Ward JA held that “causal or causative links between the inordinate delays coupled with the defective system which together contributed to [the Claimant’s] injury were clearly established”.

The PC considered Bonnington Castings Ltd v Wardlaw [1956] AC 613 where the House of Lords had held that the burden was on the employee to prove that the breach of duty had helped to produce the pneumoconiosis in the Claimant. However, they also went on to decide that “the sources of the disease was the dust from both sources” ( i.e. one which was a breach of duty and one which was not) and therefore the Claimant had proved that “ a quota of the silica dust which was not negligible …[ went in] to the claimant’s lungs and therefore helped to produce the disease”.

Lord Keith (at p626) said that the claimant had proved enough to support the inference that the employers’ fault had materially contributed to his illness, because prima facie the particles inhaled were acting cumulatively and that the natural inference was that, had it not been for the cumulative effect, he would not have developed pneumoconiosis when he did.

In Williams the appeal court held that the delay had materially contributed to the Claimant’s complications after surgery. It held that “as a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome”.

The court indicated that if “the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant”, then the claim will fail. That is not sufficient.  It is not sufficient to show that the defendant’s negligence added to the list of risk factors (see Wilsher v Essex Area Health Authority [1988] AC 1074.

In this case, the PC upheld the CA view that the injury to the heart and lungs was caused by the sepsis from the ruptured appendix. The development and effect was a continuous process, but the question was whether the delay had contributed to the prolonged period during which that sepsis occurred.  It was held that “the hospital board’s negligence materially contributed to the process, and therefore materially contributed to the injury to the heart and lungs”.

It is now somewhat clearer that the events can be sequential rather than simultaneous, if they contribute to the injury which of itself may have been inevitable to some extent, but has been extended by the negligence of the Defendant.

Further clarification is still required in this emerging area and more suitable cases will need to go to the SC before we can be entirely clear on where the lines are drawn. This decision at least begins to mark the edges.