The claimant had suffered brain damage following cardiac arrest after inhaling vomit. She had inhaled her vomit because she was in a very weakened state. Two causes had contributed to her weakness, one tortious, the other not. The judge below held that the tortious cause had made a material contribution to the weakness and the claimant succeeded in full. The employer appealed.
Held: The appeal failed. It was not possible to say with any confidence whether, without the tortious contribution, the claimant would have been so weak as to inhale her vomit. It was not suggested either in this court or below that the damages should be apportioned.
Waller LJ said: ‘I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. 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.’
Judges:
Lord Justice Waller, Lord Justice Sedley and Lady Justice Smith
Citations:
[2008] EWCA Civ 883, Times 26-Aug-2008, [2009] 1 WLR 1052
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Dickins v O2 Plc CA 16-Oct-2008
The employer appealed against a finding that it was responsible for the personal injury of the claimant in the form of psychiatric injury resulting from stress suffered working for them. She had told her employers that she was at the end of her . .
Cited – Leigh v London Ambulance Service NHS Trust QBD 20-Feb-2014
The claimant was injured, and an ambulance was called. There was an unnecessary and neligent delay. The claimant suffered post-traumatic stress and now sought to recover damages from the trust.
Held: The claimant had unfortunately suffered a . .
Lists of cited by and citing cases may be incomplete.
Armed Forces, Professional Negligence, Personal Injury
Updated: 18 July 2022; Ref: scu.271219