Material Contribution - Case Update: ST V Maidstone (2015)

In clinical negligence cases, the issue of causation is often complex and the most difficult legal test for the Claimant to prove. There have been a large number of cases where the court has considered the issue of causation in great detail and the recent case of ST (A protected party by his Mother and Litigation Friend KT) v Maidstone & Tunbridge Wells NHS Trust is no exception.

In clinical negligence claims the Claimant must prove that on the balance of probabilities there is a 51% chance a past event occurred or would have occurred. However, in some instances the injury may have had several causes and it may not therefore be possible to satisfy the 'but for' test. This was considered at length in the case of Bailey v Ministry of Defence (2009).

Bailey v Ministry of Defence (2009)

In the case of Bailey the Claimant aspirated vomit leading to a cardiac arrest and hypoxic brain damage. The Claimant was treated negligently but he also had pancreatitis.

In Bailey, it considered those cases where the injury could have been caused by both negligent and non-negligent acts or omissions. In these circumstances, it was ruled that the 'but for' test for causation should be relaxed i.e. the defendant may be liable where its negligence made a material contribution to the injury.

In this case it was proven that medical science would be unable to put a percentage value on how much each of the acts contributed to the injury. Therefore if the Claimant can show the breach was "more than negligible" in contributing to the injury, then the test would be satisfied.

In Bailey the Court of Appeal found that both pancreatitis and the negligence had an impact and therefore the evidence did not satisfy the 'but for' test.

The Court of Appeal went on to set out the key elements concerning 'material contribution' in causation:

A number of factors caused the injury The claimant is unable to satisfy the 'but for' test due to lack of evidence or medical science cannot prove it The Defendant is unable to show that 'but for' the negligence the damage would have been the same The claimant can prove that the negligence was 'more than negligible' or that it made a 'material contribution' to the severity or extent of the injury. The extent or percentage of the negligence cannot be measured ST v Maidstone & Tunbridge Wells NHS Trust (2015)

Bailey was considered at length in ST v Maidstone & Tunbridge Wells NHS Trust.

The Claimant suffered congenital haematological conditions...