Bailey v Ministry of Defence [2008] EWCA Civ 883
Citation: Bailey v Ministry of Defence [2008] EWCA Civ 883
Rule of thumb: If a person chokes on their own vomit after an operation, is this a claim? Yes, post-op vomiting is a foreseeable side-effect & measures must be put in place to try to prevent it.
Judgment:
The basic facts of this case were that a Bailey was in hospital for a regular operation on a gall stone. In the care of the defendants choked on her own vomit and sustained brain damage. The causes of this were that inherent pancreatitis, as well as the breach of care by the defenders. The Court held that the hospital run by the Ministry of Defence was negligent in allowing this to happen. The Court affirmed that the Baker test only applied where there were multiple negligent causes – not multiple causes overall, ‘In my view one cannot draw a distinction between medical negligence cases and others. 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’, Walker LJ at 46
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.