The Complexities In Bringing Medical Negligence and Industrial Disease Type Claims

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 dependent on which of the tests the court applies.
In a case which I will simply refer to as Bailey, the Court of Appeal once again considered this complex issue of causation. In that case the Claimant underwent treatment for possible gall stones in her bile duct. After the procedure her condition deteriorated and she developed renal failure, acute pancreatitis and respiratory failure. She was transferred to a different hospital but eventually suffered a cardiac arrest and brain damage.
Lord Justice waller said in dealing with cases involving an accumulation of causes of injury:
“if the evidence demonstrated on the balance of probabilities that the injury would have occurred as a result of the non-tortious cause (i.e non-negligent acts) or causes in any event, the Claimant would have failed to establish that the tortious cause contributed. If the evidence demonstrated that but for the contribution of the tortious cause the injury would probably have not occurred, the Claimant would have discharged the burden [of proving the claim]”.
It seems therefore that where medical evidence cannot establish that but for the negligence the injury would not have happened but can establish that the contribution of the negligent act was more than negligible, the “But For” test is modified and the Claimant would succeed.
In conclusion therefore where you have medical conditions such as cerebral palsy that have competing causes such as infection, lack of foetal growth and hypoxic brain damage Medium Scale Industry at birth, the Claimant must show that the Defendant’s breach of duty of care was on balance a material cause or a material contribution to the Claimant’s condition.
Issues of evidence and causation in clinical negligence claim and industrial disease claims, as can be seen in this article, are not straightforward and it is important that you obtain the help, advice and assistance of a firm of solicitors that specialize in this field of law.
Also, do bear in mind that if you have legal expense insurance you are not legally obliged to go with the panel solicitor that is appointed by your insurance company as you always have the right to choose your own solicitors in accident claims.

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