Medical negligence claims and claims for occupation or industrial disease are notoriously complex and challenging claims primarily because of issues relating to causation. Causation is the area of law that seeks to establish what actually caused the injury suffered by a Claimant.
In a standard accident claim such as a car or motorbike accident, it’s normally very easy to establish what caused the injuries suffered by a Claimant. The lawyers can therefore simply focus on who was responsible for the accident.
The issue of causation in medical negligence and industrial disease claims by contrast, are more complicated particularly in circumstances where the injury could have more than one cause, which is an area of law that has occupied the attention of the House of Lords on several occasions.
Currently, there are two differing, and on the face of it, inconsistent tests on causation known as the “material contribution” test and the “but for” (or direct cause) test.
The rational of the “But For” test is that if the Claimant suffers injury that would not have occurred “but for” the Defendant’s negligence, then that negligence will be deemed to have caused the injury. The important point made is that the negligence need not be “the” cause as there may be other things that may be relevant and contributed to the injury.
The case Barnett -v- CK HMC is an example of the “but for” test. Three men attended hospital with clear symptoms of illness. The duty nurse called the casualty officer who did not see or examine the men but advised that they should go home and see their own doctors. Five hours later one of the men died from arsenic poisoning. Medical evidence was obtained which indicated that even if the deceased received prompt treatment it would not have been possible to save him. So even where the casualty officer was negligent, the hospital was not liable for the death because nothing could have been done for the man in any event.
The second test of “Material Contribution” is also known as the Bolam test after the case of Bolam v Friern HMC.
By way of illustration of the “Material Contribution” test, a Court of Appeal considered a claim involving a steel dresser who contracted pneumonconiosis as a result of exposure to silica dust from using both a pneumatic hammer and swing grinders. There was a statutory duty to provide extractor fans in respect of the use of swing grinders but not in Industrial Development Ppt relation to pneumatic hammer. The issue was whether the dust was caused by the grinders or the hammer. The Court of Appeal ruled that the Claimant only had to show the dust from the swing grinders had made a material contribution to the disease. The Claimant did not have to show that the dust from the grinders was the sole cause of the disease.
As can be seen from these two approaches, there lies some inconsistency, as the outcome of a case will be …
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