Thursday, 17 March 2016

Cumulative Causes of Brain Injury

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In a recent post on the Privy Council decision in Williams v Bermuda I wrote about the application of Bailey v MOD "material contribution" in obstetric brain injury cases.

Neonatal HIE

The High Court judgment in John v Central Manchester  makes the case even clearer.

The Claimant, Dr John, suffered a head injury in a fall. He was taken by ambulance to Manchester Royal Infirmary and a CT brain scan was planned. There was delay in arranging the scan. The Court found the delay to be negligent and to have resulted in a delay in performing a craniotomy and evacuation of what was found to be an acute subdural haematoma of about 6 hours. During that 6 hours the Claimant suffered raised intracranial pressure.

Acute Subdural Haematoma

Following the evacuation the Claimant suffered from post-operative infection.

The Court accepted the Claimant's approach to causation: the negligent delay materially contributed to the Claimant's long term brain damage and that, following Bailey v MOD, the defendant should be liable for the whole of the subsequent injury. His Counsel, Darryl Allen QC from Manchester, also drew the Court's attention to Williams v Bermuda. The importance of Williams to Dr John's case was that the Privy Council had in effect approved the application of Bailey to sequential or cumulative causes. In Bailey the two potent. separate causes had simultaneously caused an indivisible injury. In Williams, as in the case of Dr John, the causative factors had occurred cumulatively - it was one thing after another, contributing to the final outcome.

It is a similar picture in many obstetric cases where the baby suffers from hypoxic ischaemic encephalopathy. There may be a non-negligent period of hypixia ischaemia followed by a negligent period. These cumulatively cause the claimant to suffer from cerbral palsy.

In John, the defendant sought to distinguish Bailey by contending that there were three very different agents causing the eventual outcome. In closing submissions, Andrew Kennedy for the Trust submitted that damages should be apportioned between the negligent and non-negligent causative factors. The Judge rejected that approach. He wondered about the logic of it - if the material contribution approach is appropriate it is precisely because one cannot assess the extent of the contribution by the negligent cause (other than to say that it was material). Picken J said that apportionment is not appropriate where it is not merely difficult but actually impossible to allot particular loss to particular cause. This is not the impossibility of attributing a cause, but of making a precise apportionment.

It might be contended that in a different case, where the negligent and non-negligent causes of brain damage are the same in type or agency (such as in many cerebral palsy cases) then an apportionment is possible. Such cases, it might be said, are dose related (See Court of Appeal decision in Dickins v O2 [2008] EWCA Civ 1144) and therefore amenable to apportionment. However, in Williams the negligent and non-negligent agents of injury were the same (infection), yet Bailey was applied to render the defendant liable for the whole injury. And in Popple v Birmingham the Court of Appeal applied Bailey to a cerebral palsy/ HIE case.

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