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Clinical Negligence Solicitors Newport

To the disappointment of Defendants, the Doctrine of "material contribution" has been confirmed in the recent case of Williams v The Bermuda Hospitals Board [2016] but, was this a missed opportunity to clarify this area of law?

Breach of duty

In order to successfully pursue a clinical negligence claim, the Claimant (that is the person who is bringing the claim) is needed to satisfy a two-stage test for breach of duty and causation.

Thus, the Claimant must initially satisfy the first stage of the test, that is breach of duty. Accordingly, the Claimant must show that the medical treatment he/she received fell below a standard that a reasonable body of medical opinion would find acceptable. This test is set out inBolam v Friern Hospital Management Committee [1957] and was later adapted and interpreted in Bolitho v City and Hackney Health Authority [1997].



The second part of the test is to establish causation. The Claimant must therefore show that "but for" the breach of duty, the injury would not have happened.

Historically, the test for causation had been the "but for" test however, as medicine has advanced, it has been realised that, on occasions, an injury is sustained as the result of both negligent ("Guilty") and non-negligent ("Innocent") acts and omissions.

Bonnington Castings v Wardlaw [1956]


This issue of Guilty and Innocent contributions to an injury was dealt with some time ago in the case of Bonnington. The Claimant in this case suffered from myocardial ischaemia. The injury was caused by sepsis, part of which was attributable to the negligent delay and, part of which had begun regardless of the delay. Thus, the injury was "indivisible". It was considered that the development of the sepsis and the consequential damage caused was a single continuous process. However, the negligent delay as found to have "materially contributed" to the injuries and so the Claimant as successful.


Bailey v Ministry of Defence [2008]


Despite Bonnington, clarification was required. The issue was dealt with by the Court of Appeal in the case of Bailey. It is arguable that Bailey simply reaffirmed that which was provided in Bonnington.

In Bailey, the Claimant experienced a failed procedure to remove a gallstone, choked on her own vomit which causing brain damage. The Claimant further sustained pancreatitis following the failed removal. The court found that the Claimant was unable to clear her own airways as a result of inappropriate care, that is the negligence and, the onset of pancreatitis, which was non-negligent. It was held that, if it is not possible to medically prove what the Claimant"s outcome would have been but for the negligence, it is satisfactory for the Claimant to show that the negligence materially contributed to their injury. In these circumstances, the claimant would be in a position to recover full damages.

Thus, at this point, we are aware that, so long as the Claimant can evidence that the Guilty act or omission materially contributed to the injury and, the injury is indivisible, the Claimant shall be successful. Nonetheless, subsequent case law revealed that there remained uncertainties in this area of law in that what is deemed as indivisible caused debate, as well as Claimant"s ability to evidence a material contribution. Moreover, Defendants interpreted Bonnington and Bailey to have held that the negligent act or omission was concurrent with any non-negligent act or omission.

Defendants were of the opinion that Bailey has misinterpreted Bonnington and thus the material contribution doctrine was being too widely applied, was Claimant"s grew frustrated at the Court"s sometimes behaviour to misunderstand medicine.

A clear statement of law was thus required and many hoped the case of Williams v The Bermuda Hospitals Board [2016] would afford such clarification.

Williams v The Bermuda Hospitals Board [2016]


In Williams, the Claimant attended the Accident an Emergency department complaining of abdominal pain. It was found the Claimant was suffering from appendicitis. A CT scan was planned but same was found not to have been carried out expeditiously. As a result, the Claimant experienced significant delays in being diagnosed and subsequently treated. During the delay, the Claimant"s appendix ruptured and the Claimant suffered sepsis which worsened with the delay. The sepsis then caused myocardial ischaemia. The issue was therefore whether the negligent delay had caused the myocardial ischaemia.

Subsequent to Bailey, some had considered that, in certain circumstances, the "but for" test may be modified. However, clarification was required and so, it was hoped the Privy Council would provide such clarification in Williams.

Initially, Hellman J held that the Claimant had failed to prove the "but for" test in that the complications would have been avoided. Consequently, it was considered that Williams had overturned the judgement in Bailey in that the "but for" test cannot be deviated from.

On appeal, the Court of Appeal reversed Hellman J stating that the question was not whether the negligent delay was the cause of the myocardial ischaemia but, whether the delay materially contributed to the injury.

Claimants and Defendants therefore largely anticipated the judgement in Williams hoping this would provide the much needed clarification. Since Bailey, Defendants had been concerned that material contribution had been widely used and to some extent abused the "but for" test. Therefore, at appeal, the Defendant (now Appellant) argued that the true test is found in Bonnington which did not assist the Claimant (now Respondent) in this matter. Rather, it was the Appellant"s argument that Bonnington held that, in order to succeed on material contribution, the following must be shown:-

  1. There had to be a single causative agent;
  2. That a Defendant had materially contributed to the pathological process by its negligence;
  3. That the Defendant's contribution was concurrent with any non-negligent cause and,
  4. That the Defendant's negligent contribution increased the magnitude, and not merely the risk, of suffering harm.

Moreover, the Appellant argued that Bailey had been wrongly decided and that neither the Claimant in Bailey nor the Claimant in Williams satisfied the four stage test in Bonnington.

The Appellants submissions were not accepted by the Court of Appeal. Rather, of interest, the following points were held:-

1. Bailey did not involve a departure from the "but for" test. In Bailey, the entirety of the Claimant"s condition was the cause of the injury. The issue that there was a non-negligent cause of the condition must be considered as taking a claimant as you find them.

2. A Defendant's material contribution does not have to occur concurrently with the non-negligent cause. The sepsis in Williams attributable to the Defendant's negligence took place after sepsis had already begun to develop. Therefore, negligence causes may take place concurrently, consecutively or, both.

3. The Privy Council advised caution in relation to the use of the "doubling of risk" test but, recognised that the test may at times be helpful.

The ramifications of Williams


Whilst the judgement in Williams provided reassurance to Claimant Clinical Negligence solicitors that the doctrine of material contribution is applicable, the judgement has provided little in the way of clarification.

9 Gough Square chambers has rightly advised that what is required is a clear statement of law from either the Supreme Court or Parliament.

We seem to be in the position prior to Williams. Again, we can confirm is that if negligence contributed to an injury (or injuries), as opposed to being the cause of the injury, then the doctrine of material contribution applies. Moreover, a Claimant must be able to provide the material contribution and, the doctrine shall not apply if the injuries are divisible and the cause of each is attributable. Unfortunately, we are aware that the Courts have consistently failed to give proper guidance as to what constitutes an indivisible injury and at times displayed a misunderstanding of medicine.

What the above and additional case law is revealing is that there seems to be some tension between the Privy Council and the Court of Appeal in this area of law and no doubt Defendant and Claimant solicitors shall continue to have opposing views on the interpretation of case law until a clear statement of law is provided.