Bailey v Ministry of Defence [2008] EWCA Civ 883

Court: Court of Appeal

Facts: Claimant's health deteriorated due to poor care post-surgery, leading to a condition where she aspirated vomit. The MOD was found liable for contributing to her weakened state.

Issue: Whether the "but for" test or the "material contribution" test applies in cases where multiple causes contribute to the harm.

Held: The court found in favor of the claimant (C), holding that D’s negligent treatment was a more than negligible cause of C’s brain injury, thus constituting a material contribution. The court clarified that in cases where medical science cannot conclusively establish that "but for" the defendant's negligence the injury would not have occurred, the "but for" test is extended. If the defendant’s negligence made a material contribution to the harm—more than negligible—then causation is established. The Fairchild test of "material contribution" applies when multiple causes contribute to harm. The MOD's failure to provide adequate care materially contributed to the claimant's injury.

• Waller LJ : It was evident that C’s weakened state caused her inability to respond naturally to her vomit, leading to her injury. The central issue was what caused C's weakened state, and whether D's negligence contributed materially to it. f D’s contribution was more than negligible, then the material contribution test is satisfied, and D is liable. The case did not apply the traditional "but for" test, due to the presence of cumulative causes.