Material Contribution: The Search for the Elusive Third Way - Charles Feeny & Sammy Nanneh, Contributing Editors at Pro-Vide Law
07/01/16. In Bailey v the Ministry of Defence [2009] 1WLR 1052, Lord Justice Waller stated, “In a case where medical science cannot establish the probability that “but for”an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for”test is modified, and the Claimant will succeed”.
Lord Dyson MR commented upon this in Reaney v University of North Staffordshire NHS Trust and Mid Staffordshire NHS Foundation Trust [2015] EWCA Civ 1119,
“This was an accurate distillation of the law set out in cases such as Bonnington Castings Limited v Wardlaw [1956]AC 623 and Fairchild v Glenhaven Funeral Services Limited [2003] 1AC32.”
Lord Dyson’s apparent belief that the law is clear and straightforward has to be considered over-sanguine, particularly in relation to the meaning of the concept “material contribution of damage “ and the basis upon which a modification of “but for “ causation might arise.
In reality, a comprehensive definition of the term “material contribution to damage” remains elusive. There are two essentially unproblematic ways in which the concept applies, but it appears that judges and academics are still seeking to elucidate a third way in which the term could be...
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