1. If you ever worry that you find it hard to get your head around material contribution then stop. You are not alone.

2. The Court of Appeal has now given welcome clarification and explained:
   1. That material contribution causation applies both to divisible and indivisible injuries.
   2. That this area of law “has been bedevilled by apparent inconsistency and imprecision at the highest level on multiple occasions.” [in other words it wasn’t just you and you weren’t imagining it].

McCulloch v Forth Valley Health Board

Mr McCulloch died in April 2012 after suffering a cardiac arrest. He had reported chest pain and received treatment at Forth Valley Hospital. His treating cardiologist, Dr Catherine Labinjoh, decided that his presentation was inconsistent with pericarditis. He was discharged a few days later, but then readmitted. Dr Labinjoh saw him the following day. Her evidence was that he was walking around the ward and looking well. He denied chest pain. She decided not to offer or prescribe non-steroidal inflammatory drugs (“NSAIDs”) but said in evidence that if he had complained of chest pain, she would have prescribed NSAIDs. The following day, he suffered a fatal cardiac arrest.

His widow brought a medical negligence claim against the Health Board on several grounds, but the primary argument  was Dr Labinjoh’s alleged failure to discuss reasonable alternative treatments for pericarditis. It was agreed at the court of first instance that the standard treatment for pericarditis was NSAIDs. Dr Labinjoh’s position was that she did not discuss the option of NSAIDs as, at the time of the second admission, his presentation was  not consistent with pericarditis. Mr McCulloch did not have chest pain and her practice was only to prescribe NSAIDs for pericarditis when pain was reported. Her actions/decision-making was supported by the expert cardiology witness for the Health Board.

CNZ v. Royal Bath Hospitals NHS FT and SoS for Health and Social Care, 11 January 2023

1. Mr Justice Ritchie has given judgment for the claimant in a historic CP case which has significant implications both for Montgomery and material contribution causation in clinical negligence cases, particularly those involving acute profound hypoxic ischaemia. The Claimant, a second twin, was born in 1996. She has profound disabilities as a result of about 16 minutes’ acute profound hypoxia.

2. In summary:

• Montgomery applied in 1996;
• Montgomery applies to both antenatal consultations and decisions made intrapartum in the delivery room/ operating theatre;
• Elective caesarean section was a ‘reasonable alternative treatment’ for twins in 1996 even where this was ‘not standard management’;
• acute profound hypoxic ischaemia is a ‘divisible injury’ to which material contribution applies;
• it is not possible to divide the functional outcome which would result from a shorter insult, so a claimant is entitled to damages in respect of 100% of her injury even if she would have suffered some injury in any event;
• in an acute profound hypoxic ischaemia case, ‘every minute counts’.

I wrote an article in June last year on material contribution after the case of Davies v Frimley Health NHSFT 2021 EWHC 169 QB. Since then another first instance judge has again expressed obiter remarks on the topic in the case of Thorley v Sandwell and West Birmingham NHS Trust 2021 EWHC 2604 QB.

Like Davies, the judge in Thorley also expressed the view that material contribution only applies to divisible (in the sense of dose related) injuries. This article addresses whether that principle is correct and considers the leading authorities on the point – MOD v AB and Others 2010 EWCA Civ 1317 and Williams v Bermuda 2016 UKPC 4.

Summary: The High Court has today handed down judgment in Marc Traylor and Kitanna Traylor v Kent and Medway NHS Social Care Partnership Trust, a clinical negligence case full of interesting legal issues including the application of the illegality doctrine, voluntary assumption of risk, contributory negligence and Human Rights Act claims.  Although the claims ultimately failed, the Claimants were successful on a number of the legal arguments, bringing some welcome clarity to the scope of the illegality defence, among other things.

The basic facts are that on 9 February 2015, in the midst of a psychotic episode, Marc Traylor took his daughter hostage. Armed police were called to the scene, and Mr Traylor was shot several times, but not before he had managed to stab his daughter.  Neither were killed, but both were seriously injured.  It is this tragic background that led to two claims being brought against the Trust, which was responsible for managing Mr Traylor’s mental health care and treatment.