Monday, 25 January 2016

Williams v Bermuda - A Short Explanation

A patient goes to A&E complaining of abdominal pain. He has appendicitis. A scan is ordered but there is an avoidable delay before a scan is performed and an appendectomy undertaken. At the operation it is found that the appendix has ruptured and there was a large accumulation of pus which led to myocardial ischaemia.

These were the facts in the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4 decided by the Judicial Committee of the Privy Council on 25 January 2016.

The trial judge held that the claimant had failed to prove that the complications were probably caused by the defendant's failure to diagnose and treat him expeditiously. He awarded $2,000 for additional pain and suffering during the period of culpable delay but nothing for the injury caused by the complications.

The Court of Appeal of Bermuda overturned that decision, finding that the delay had materially contributed to the complications remitted the case for assessment of damages. The sum of $60,000 was ultimately awarded. The Court of Appeal found that the trial judge had been in error "by raising the bar unattainably high". The proper test of causation was "not whether the negligent delay and inadequate system caused the injury ... but rather whether the breaches of duty by [the hospital board] contributed materially to the injury." It was beyond argument, found the Court of Appeal, that the breaches had contributed materially to the injury. The question of causation was not one of all or nothing.

The hospital board appealed. The NHSLA was an intervener, supplying written submissions only, represented Bevan Brittan LLP, as was the Appellant Board.

The Respondent patient contended that the Court of Appeal had been correct - it is enough that the defendant's negligence has contributed to the claimant's injury where the evidence points to there having been cumulative causes. The same principle does not apply where there are merely several possible causes any of which may have been entirely responsible for the injury. The Court of Appeal had been entitled to conclude that the complications were the "product of a steadily worsening accumulation of sepsis over several hours, which was caused in part by the negligence of the hospital board."

The Privy Council rejected the Appellant's submission that the material contribution principle only applied to simultaneous contributory causes - "As a matter of principle successive events are capable of each making a material contribution to the subsequent outcome." [39]

The Respondent's heart and lungs were found to have been damaged by sepsis; the sepsis developed incrementally over a period of a number of hours, progressively causing the myocardial ischaemia: "[The] development [of sepsis] and effect on the heart and lungs was a single continuous process, during which the sufficiency of the supply of oxygen to the heart steadily reduced." [41]. On the balance of probabilities the negligent delay, found to be at least 2 hours 20 minutes "materially contributed to the process, and therefore materially contributed to the injury to the heart." [42].

In obiter remarks the Privy Council supported the Bailey v MOD findings and expressed caution about applying a "doubling of risk" test to causation.

This case raised a principle regarded as one of importance by the Appellant, and doubtless by the NHSLA also since it intervened. I have previously posted on the application of material contribution in clinical negligence cases. This decision will have implications for many kinds of clinical negligence claims, including obstetric negligence. Brain damage suffered by babies during the late stages of labour/first minutes after delivery, is often due to a period of hypoxia and ischaemia. Hypoxic ischaemic encephalopathy (HIE) is a brain dysfunction caused by a reduction in the supply of oxygen to the brain and other organs compounded by low blood flow to vital organs. The duration of hypoxia and ischaemia is an important factor in determining the outcome for the baby. If negligent delay contributes to the process of deprivation of oxygen and blood flow then it is likely to be found to have made a material contribution.

I have written previously about the possibility of using the principle of material contribution in claims for delay in diagnosing cancer. This case would lend support to that approach in appropriate cases.

Where the "injury" is divisible, it is thought that the tortfeasor is responsible only for the extent of the injury caused by it. If the injury is indivisible then a defendant who has tortuously contributed to the cause of the injury will be liable in full. I have been provided with a copy of the judgment of the Court of Appeal of Bermuda by Dr David Levy. It appears to have been implicitly accepted that if there was a material contribution then the defendant was liable for the whole injury. It would seem to follow that it was accepted that the injury suffered by Mr Williams was indivisible. That was not made explicit. If you would like a copy of the Court of Appeal's judgment, please email me on

Decisions of the Judicial Committee of the Privy Council are not binding in domestic courts. They are however persuasive authority. The fact that the judgment was given by Lord Toulson and the other judges were Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge, will give this decision considerable persuasive weight.

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