Clinical negligence occurs when healthcare professionals do not provide the standard of care that could reasonably be expected, resulting in harm or injury to a patient. We specialise in personal injury and clinical negligence claims, acting only for individuals who have suffered due to mistakes in their medical treatment. One key legal idea in these cases is “contributory negligence,” which can play an important role in showing how the negligence led to your injury. In this article, we explain it in straightforward terms, using examples from key cases, to help you see if it might apply to your situation.
What is Causation in Clinical Negligence?
In any clinical negligence claim, you must prove that the healthcare provider’s error (known as the “breach of duty”) directly caused your injury or made it worse. This is called “causation.” Usually, we use the “but for” test: would your injury have happened anyway, without the negligence? If not – meaning the negligence was the main reason – you may be able to claim compensation.
However, things are not always that simple. Injuries or illnesses can involve several factors, making it hard to identify the exact cause. This is where contributory negligence comes in. It allows courts to deal with cases where negligence played a real part in the harm, even if it was not the only factor.
When Does Contributory Negligence Apply?
Contributory negligence is helpful when medical experts cannot fully explain how an injury happened, or when both negligent and non-negligent causes are involved. For instance, if your condition worsened due to a combination of natural factors and a doctor’s mistake, you might still succeed in your claim if the “contributory negligently” added to the harm.
Courts have built on this idea over the years, starting with cases about industrial diseases but now applying it to clinical negligence too. Some important points from key cases include:
- Bonnington Castings v Wardlaw (1956): This involved a worker exposed to harmful dust at work. Some dust came from negligent sources (like broken equipment), and some from non-negligent ones. The court ruled that if the negligent dust made a real contribution to the worker’s lung disease – even if not the biggest cause – the employer was responsible for the full injury.
- Bailey v Ministry of Defence (2008): In this clinical negligence case, a patient suffered brain damage after becoming weak from negligent care following an operation, combined with a non-negligent illness (pancreatitis). The court decided that since the contributory negligence added to her weakness, leading to the injury, she could claim full compensation. The judge said that if the negligence increased the risk in a meaningful way – not just a small one – it counts.
- Fairchild v Glenhaven Funeral Services (2002): This was about workers exposed to asbestos by different employers. Experts could not prove which exposure caused their cancer, but the court allowed claims because each negligent exposure raised the risk. While this focuses on “increasing risk,” it shows how courts adjust rules when science leaves gaps.
If the negligence made your condition worse or raised the chances of harm – and it was more than a minor factor – contributory negligence can help prove causation. This is particularly useful in complicated cases like delays in diagnosing cancer, errors during surgery, or infections where several things went wrong.
Divisible vs Indivisible Injuries
To better understand contributory negligence, it helps to know about “divisible” and “indivisible” injuries:
- Divisible injuries: These worsen with more exposure to the harmful factor, such as lung damage from dust or asbestos. Compensation might be shared based on each cause’s contribution.
- Indivisible injuries: These are all-or-nothing, like a stroke or death. If contributory negligence played a part, the defendant could pay for everything, unless the court can fairly split it.
In clinical negligence, many injuries are indivisible, so you might receive full compensation if contributory negligence is shown.
Why Scientific Uncertainty Matters
Medical experts are crucial in these claims, as courts rely on science to explain how injuries occur. But sometimes science does not have all the answers – for example, exactly how a delay in treatment affects a brain injury, or cancer. In such cases:
- Courts use common sense along with expert evidence.
- If negligence is shown to have added to the harm on the balance of probabilities (more likely than not), your claim can succeed.
- Recent cases, like Davies v Frimley Health NHS Foundation Trust (2021), confirm that contributory negligence is not a new rule but a fair way to apply principles when standard tests do not fit.
This helps ensure victims are not left without compensation just because the precise cause is difficult to identify.
How We Can Help with Contributory Negligence Claims
Essex Personal Injury Lawyers, the dedicated personal injury and clinical negligence team at Jefferies Solicitors, are experts in handling these complex matters. We have dealt with many clinical negligence cases where contributory negligence was key, such as delays in diagnosis, surgical errors, or failures in patient care. Our team will collect evidence and consult medical experts to help build a solid case that demonstrates how the negligence contributed to your suffering.
If you or a loved one has been affected by clinical negligence and think contributory negligence might apply – perhaps due to multiple factors causing your injury – contact us today. We are here to simplify the process, explain your options, and secure the compensation you deserve. Give us a call on 01702 443472 or visit https://essexinjurylawyers.co.uk/contact to get started.
