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Legal Mind Case and Commentary No.2: Material Contribution and the ‘but for’ Test - Dr Hugh Koch and Dr Karen Addy

24/05/16. EWCA Civ 883 was a tort law case which concerns the problematic question of factual causation, and the interplay of the “but for” test and its relaxation through a “material increase in risk” test. The case involved Miss Bailey who developed medical complications following treatment for suspected gallstones. Initially she was admitted to the Royal Hospital Haslar (a hospital for civilian NHS patients, but also used and run by the Ministry of Defence) however her medical condition deteriorated and she was transferred to another hospital, the Queen Alexandra and St Mary’s Hospital in Portsmouth and put into intensive care. It was noted that her condition was critical and she remained seriously ill for over ten days, following showing some improvement she was transferred to a general renal ward. However whilst on the ward, following drinking some lemonade, she was unable to effectively clear her airways and choked. By the time she was resuscitated she had gone into cardiac arrest and suffered hypoxic brain damage. In the High Court Foskett J held that Miss Bailey should recover compensation, the Ministry of Defence appealed.

The question in the Court of Appeal was whether the first Ministry of Defence hospital caused the brain damage. It could not be said with certainty that it was poor care that led to Miss Bailey’s weakness (and choking leading to brain damage), because her weakness was also a result of the pancreatitis that Miss Bailey developed...

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