||All England Reporter
|| All ER (D) 382 (Jul)
|| EWCA Civ 883
||Court of Appeal, Civil Division
Waller, Sedley and Smith LJJ
||Christopher Gibson QC and Paul Dean (instructed by Blake Lapthorn Tarlo Lyons) for the claimant.
||Derek Sweeting QC (instructed by the Treasury Solicitor) for the first defendant.
||29 July 2008
Negligence - Causation - Predominant cause - Claimant being negligently treated immediately after endoscopic procedure in hospital - Claimant ultimately suffering brain damage after cardiac arrest two weeks later - Whether hospital authorities liable for claimant's brain damage - Whether claimant having established causation
Negligence Causation. It was not possible to draw a distinction between medical negligence cases and others. The position in relation to cumulative cause cases was that if the evidence demonstrated 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 would have failed to establish that the tortious cause had contributed. However, if the evidence demonstrated that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant would have discharged the burden of proof on him. 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 'but for' test was modified, and the claimant would succeed.
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