In a more recent case of Bailey v Ministry of Defence [2008] EWCA Civ 883, however, the courts have shown that in exceptional circumstances they are prepared to depart from the strict application of the ‘but for’ test. The respondent had a cardiac arrest and brain damage after choking on her vomit. The judge had found that the physical cause of the cardiac arrest was the appellant’s weakness and inability to react to her vomit. This weakness was caused partly by the appellant’s lack of post-operative care and partly by a non-negligent cause – the pancreatitis from which she had been suffering. In finding for the respondent the Court of Appeal held: In a case where medical science could not establish the probability that ‘’but for’’ an act of negligence the injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the [result]. The instant case involved cumulative causes acting so as to create a weakness and thus the judge had applied the right test and was entitled to reach the conclusion he had reached.
Answer
‘’but for’’ test was modified, and the claimant would succeed
Tags
#clinical-negligence #negligence #tort
Question
In a more recent case of Bailey v Ministry of Defence [2008] EWCA Civ 883, however, the courts have shown that in exceptional circumstances they are prepared to depart from the strict application of the ‘but for’ test. The respondent had a cardiac arrest and brain damage after choking on her vomit. The judge had found that the physical cause of the cardiac arrest was the appellant’s weakness and inability to react to her vomit. This weakness was caused partly by the appellant’s lack of post-operative care and partly by a non-negligent cause – the pancreatitis from which she had been suffering. In finding for the respondent the Court of Appeal held: In a case where medical science could not establish the probability that ‘’but for’’ an act of negligence the injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the [result]. The instant case involved cumulative causes acting so as to create a weakness and thus the judge had applied the right test and was entitled to reach the conclusion he had reached.
Answer
?
Tags
#clinical-negligence #negligence #tort
Question
In a more recent case of Bailey v Ministry of Defence [2008] EWCA Civ 883, however, the courts have shown that in exceptional circumstances they are prepared to depart from the strict application of the ‘but for’ test. The respondent had a cardiac arrest and brain damage after choking on her vomit. The judge had found that the physical cause of the cardiac arrest was the appellant’s weakness and inability to react to her vomit. This weakness was caused partly by the appellant’s lack of post-operative care and partly by a non-negligent cause – the pancreatitis from which she had been suffering. In finding for the respondent the Court of Appeal held: In a case where medical science could not establish the probability that ‘’but for’’ an act of negligence the injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the [result]. The instant case involved cumulative causes acting so as to create a weakness and thus the judge had applied the right test and was entitled to reach the conclusion he had reached.
Answer
‘’but for’’ test was modified, and the claimant would succeed
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Open it held: In a case where medical science could not establish the probability that ‘’but for’’ an act of negligence the injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the <span>‘’but for’’ test was modified, and the claimant would succeed. The instant case involved cumulative causes acting so as to create a weakness and thus the judge had applied the right test and was entitled to reach the conclusion he had reached.</sp
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