Material Contribution and Williams

On 25 January 2016 the Judicial Committee of the Privy Council handed down judgment in the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4, the most recent reported decision regarding material contribution in clinical negligence cases.  While not binding in domestic courts the case is highly persuasive authority.

Mr Williams (who, unbeknown to him, was suffering from appendicitis) attended A&E complaining of abdominal pain.  The hospital ordered a CT scan, but there was a delay (of at least 2 hours 20 minutes) before it was carried out.  During the subsequent surgery there were complications; Mr Williams’ appendix had ruptured, leading to him developing myocardial ischaemia.  Mr Williams brought a claim against the hospital board.

At first instance it was held that Williams had failed to prove that these complications were, on balance of probabilities, caused by the hospital’s failure to diagnose and treat him expediently.  While a small award for pain and suffering during the period of avoidable delay was made, nothing was awarded in relation to any injury caused by the complications.  Williams had failed on the ‘but for’ test.

On appeal the decision was overturned.  The Court of Appeal of Bermuda found that the delay had materially contributed to the complications.  The Court considered that the trial judge had erred in his consideration of causation, setting the threshold too high.  Causation was not an ‘all or nothing’ matter.  The proper test should not be whether the negligent delay had caused the injury (ie, not the traditional ‘but for’ test), but rather whether the breaches of duty by the hospital had contributed materially to the injury.

The hospital board appealed the decision to the Privy Council, (with the NHSLA intervening).  The hospital argued, essentially, that the doctrine of material contribution can only apply to cases where there are simultaneous contributory causes, not successive ones.  The Respondent argued that it is sufficient for the defendant’s negligence to have contributed to the injury where it can be proved that there had been cumulative causes of that injury.  This, it was argued, is different to a situation where there might simply be several possible causes which could have been fully responsible for the injury, and the Court of Appeal was correct to conclude that in this instance the complications were caused by a steadily worsening accumulation of sepsis over several hours, which was caused in part by the negligence of the hospital board.

Ultimately, and no doubt to the disappointment of defendants everywhere, the Privy Council upheld the Court of Appeal’s decision.  In this instance the sepsis had caused myocardial ischaemia to develop.  The sepsis had developed incrementally over the course of time – which included the delay caused by the hospital’s negligence – and this had similarly progressively caused the myocardial ischaemia.  The development of the sepsis, and its consequent effect, was a single continuous process.  On the balance of probabilities the negligent delay “materially contributed to the process, and therefore materially contributed to the injury to the heart.”

While Williams does not radically change the doctrine of material contribution, it has widened it to a degree that will potentially impact any number of clinical negligence cases where negligent delay may have contributed to injury.  One area where this is likely to be particularly relevant is cases arising out of brain injury at birth, where the duration of deprivation of oxygen or blood supply is a key factor.  If negligent delay has contributed to any such deprivation, then material contribution is likely to be in issue.