1074

[1988]
[HOUSE OF LORDS]

WILSHER

RESPONDENT
AND

ESSEX AREA HEALTH AUTHORITY

1988 Feb. 1, 2, 3, 4, 8, 9;
March 10

APPELLANTS

Lord Bridge of Harwich, Lord Fraser

of Tullybelton, Lord Lowry, Lord Griffiths
and Lord Ackner

R
a

Medical PractitionerNegligenceCausationPremature baby placed

in special care unitError in inserting umbilical catheter resulting
in false readings of blood oxygen levelsFailure to detect error
for several hoursBaby developing retrolentalfibroplasiaand
blindnessExpert evidence inconclusive as to actual cause of C
injuryFailure to monitor oxygen levels accurately accepted as
possible causeBurden of proving causation
The plaintiff was born prematurely and was placed in a
special care baby unit at a hospital managed by the defendants.
If he was to survive, he needed extra oxygen and to ensure that
the correct amount was administered it was necessary to insert a
catheter into an umbilical artery so that his arterial blood
oxygen levels would be accurately read on an electronic monitor.
A junior doctor mistakenly inserted the catheter into the
umbilical vein with the result that the monitor would give a
lower reading. Neither he nor the senior registrar appreciated
that the X-rays taken showed the catheter in the vein but both
realised that there was something wrong with the readings on
the monitor. The senior registrar inserted another catheter but
into the same vein and other means of monitoring the arterial
blood oxygen were also adopted. The following day the second
catheter was replaced by one in the artery. Thereafter the
monitoring of the arterial blood oxygen levels continued and at
times during the following weeks there were periods when the
levels were considered too high. The plaintiff developed
retrolental fibroplasia, a condition of the eyes, which resulted in
blindness. The plaintiff claimed damages from the defendant
health authority for the negligent medical treatment he had
received in their special care baby unit. The judge held that the
defendants were liable since they had failed to prove that the
plaintiffs condition had not been caused by the negligence of
their employees. The Court of Appeal, by a majority, dismissed
the defendant's appeal.
On appeal by the defendants:
Held, allowing the appeal, that the onus of proving causation
rested on the plaintiff; that where a number of different factors,
including the administration of excess oxygen, could have caused
retrolental fibroplasia, its occurrence following the defendants'
failure to take a necessary precaution to prevent excess oxygen
causing the condition provided no evidence and raised no
presumption that it was excess oxygen rather than one of the
other factors which caused or contributed to the plaintiffs
condition, and that, since there was conflicting expert evidence
as to whether excess oxygen in the first two days of life caused
or materially contributed to the plaintiffs condition, a question
on which the judge had failed to make relevant findings of fact

1075
1 A.C.

Wilsher v. Essex A.H.A. (H.L.(E.))

and which could not be resolved by an examination of the

evidence on transcript, the issue of causation must be retried
before a different judge (post, pp. 1090c, E-F, 1091A-C, F-H,
1092C-F).

Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613,

H.L.(Sc) applied.
McGhee v. National Coal Board [1973] 1 W.L.R. 1, H.L.(Sc)
distinguished.
Per curiam. It was doubtful whether the Court of Appeal
were entitled to resolve a conflict between the experts which the
judge had left unresolved and to find that the oxygen
administered to the plaintiff in consequence of the misleading
blood oxygen levels derived from the misplaced catheter was
capable of causing or materially contributed to the plaintiff's
condition (post, p. 1091E-F).

Decision of the Court of Appeal [1987] Q.B. 730; [1987] 2

W.L.R. 425; [1986] 3 All E.R. 801 reversed.

The following cases are referred to in the opinion of Lord Bridge of

Harwich:
n

_
b

H
H

Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; [1956] 2 W.L.R.

707; [1956] 1 All E.R. 615; 1956 S.C. (H.L.) 26, H.L.(Sc)
Clark v. MacLennan [1983] 1 All E.R. 416
McGhee v. National Coal Board [1973] 1 W.L.R. 1; [1972] 3 All E.R. 1008;
1973 S.C. (H.L.) 37, H.L.(Sc)
Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R.
613; [1957] 1 All E.R. 776; 1957 S.C. (H.L.) 44, H.L.(Sc)
Thompson v. Smiths Shiprepairers (North Shields) Ltd. [1984] Q.B. 405;
[1984] 2 W.L.R. 522; [1984] I.C.R. 236; [1984] 1 All E.R. 881
Vyner v. Waldenberg Brothers Ltd. [1946] K.B. 50; [1945] 2 All E.R. 547,
C.A.

The following additional cases were cited in argument:

Baker v. Willoughby [1970] A.C. 467; [1970] 2 W.L.R. 50; [1969] 3 All
E.R. 1528, H.L.(E.)
Beverly Hills Fire Litigation, In re (1982) 695 F. 2d 207
Deacon v. Heichert (1984) 9 D.L.R. (4th) 680
Delaney v. Cascade River Holidays (1983) 44 B.C.L.R. 24
Fitzgerald v. Lane [1987] Q.B. 781; [1987] 3 W.L.R. 249; [1987] 2 All E.R.
455, C.A.
Gardiner v. Motherwell Machinery and Scrap Co. Ltd. [1961] 1 W.L.R.
1424; [1961] 3 All E.R. 831; 1961 S.C. (H.L.) 1, H.L.(Sc)
Hotson v. East Berkshire Area Health Authority [1987] A.C. 750; [1987] 2
W.L.R. 287; [1987] 1 All E.R. 210, C.A.; [1987] A.C. 750; [1987] 3
W.L.R. 232; [1987] 2 All E.R. 909, H.L.(E.)
Jobling v. Associated Dairies Ltd. [1982] A.C. 794; [1981] 3 W.L.R. 155;
[1981] 2 All E.R. 752, H.L.(E.)
Nowsco Well Service Ltd. v. Canadian Propane Gas & Oil Ltd. (1981) 122
D.L.R. (3d) 228
Schierz v. Dodds [1981] C.S. 589
Seyfert v. Burnaby Hospital Society (1986) 27 D.L.R. (4th) 96
Weld-Blundell v. Stephens [1920] A.C. 956, H.L.(E.)

1076
Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

from the Court of Appeal.

A
This is an appeal by leave of the Court of Appeal [1987] Q.B. 730
from their judgment (Mustill and Glidewell L.JJ., Sir Nicolas BrowneWilkinson V.-C. dissenting) given on 24 July 1987 whereby the majority
dismissed an appeal by the defendants, Essex Area Health Authority,
from the decision of Peter Pain J. dated 21 December 1984 giving
judgment for the plaintiff, Martin Graham Wilsher, an infant suing by R
his mother and next friend, Heather Marjorie Wilsher, in the sum of
116,119.14.
The facts are stated in the opinion of Lord Bridge of Harwich.
APPEAL

Henry Brooke Q.C. and Stephen Miller for the defendants. The
issues which arise in the appeal relate solely to the question whether the
negligence of the defendants in the first 36 hours of the plaintiff's life
("the first episode") caused or materially contributed to retrolental
fibroplasia ("RLF") suffered by the plaintiff. Those issues fall into two
classes: (1) Were the Court of Appeal justified in making certain
findings of fact which the trial judge had not made? (2) Were the
majority of the Court of Appeal (Mustill and Glidewell L.JJ.) justified
in applying to the facts of the case, as they found them to be, the
decision in McGhee v. National Coal Board [1973] 1 W.L.R. 1 so as to
hold that the defendants' negligence was sufficiently connected with the
plaintiff's injury to establish liability?
The trial judge made no finding whether the first episode could have
caused or did cause the plaintiffs RLF. The Court of Appeal made an
original finding of fact that the high PO2 levels of the kind experienced
in the first episode could, particularly at an early stage of the plaintiff's
life, lead to RLF, although nobody could say that in the particular
instance, the first episode, rather than some other unknown factor, was
definitely the cause of one of the causes of the injury. This finding
depended on a resolution of expert evidence which was sharply conflicting
and could only properly be made by a judge who had the opportunity to
assess for himself the weight of the. evidence.
The majority of the Court of Appeal applied to the facts found by
the trial judge and by the Court of Appeal the decision in McGhee and
thereby established a sufficient causal connection between the negligence
of the defendants and the injury suffered by the plaintiff. The principle
thus applied was stated by Mustill L.J. [1987] Q.B. 730, 771H772A.
The proposition thus stated is very wide-ranging and almost without any
limitation. It reverses the burden of proof, i.e., if there is a breach of
duty by a person in one aspect of medical or nursing care and injury
ensues that person is prima facie liable without proof of a causal
connection. If Mustill L.J.'s proposition correctly states English law
where there are many possible causes of an injury, the burden of proof
is reversed because it will not be for the plaintiff to prove a breach of
duty and a causal connection but for the defendant to prove that he was
not responsible for the damage. That reverses the traditional approach
on the burden of proof. Is this the way English law should proceed?
It would be appropriate at this stage to examine the background to
McGhee. Twenty-seven years before McGhee was decided Vyner v.
Waldenberg Brothers Ltd. [1946] K.B. 50, which held that the onus was

jy

,,

1077
1 A.C.

"

Wilsher v. Essex A.H.A. (H.L.(E.))

on an employer to show that the breach of a safety regulation was not

the cause of an accident, was overruled by the House of Lords in
Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613. The House
stated that the burden of proof of causation rested fairly and squarely on
the pursuer. The principle stated in Bonnington was applied in
Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1
W.L.R. 613 and Gardiner v. Motherwell Machinery and Scrap Co. Ltd.
[1961] 1 W.L.R. 1424. In McGhee the pursuer worked in a brick kiln in
hot and dusty conditions in which brick dust adhered to his sweaty skin.
The employers were held to be at fault in failing to provide adequate
washing facilities which resulted in the pursuer having to bicycle home
after work with his body still caked in brick dust. The pursuer contracted
dermatitis and the evidence that this was caused by brick dust was
accepted. Brick dust adhering to the skin was a recognised cause of
industrial dermatitis and the provision of showers to remove it after
work was a usual precaution to minimise the risk of the disease. The
precise cause of the disease was not known and the furthest that doctors
called for the pursuer were able to go was to say that the provision of
showers would have materially reduced the risk of dermatitis. They were
unable to say that it would probably have prevented the disease. The
pursuer failed before the Lord Ordinary and the First Division of the
Court of Session on the ground that he had not discharged the burden
of proof of causation. He succeeded on appeal to the House of Lords.
Lord Wilberforce in his speech at pp. 6B-F and 7D-F seemed to say that
the burden of proof of causation was reversed. Mustill L.J. picked up
what Lord Wilberforce said and applied it to the present case. If and in
so far as Lord Wilberforce was seeking to set out a general principle of
the law of evidence, he was not correct and not supported by the other
law lords. If, on the other hand, he was concerned only with the
evidential gap in the appeal before him those passages present no
difficulty. McGhee was not cited nor mentioned by academics and
textbook writers in England as stating any new principles for 10 years
until it was resurrected for the first time in Clark v. MacLennan [1983] 1
All E.R. 416 and then in Thompson v. Smiths Shiprepairers (North
Shields) Ltd. [1984] Q.B. 405; Hotson v. East Berkshire Area Health
Authority [1987] A.C. 750 and Fitzgerald v. Lane [1987] Q.B. 781. In
other jurisdictions the United States has not adopted the new principles
said to have been identified by Lord Wilberforce in McGhee: see In re
Beverly Hills Fire Litigation (1982) 695 F. 2d 207; the difficulties the
courts in Canada have encountered in trying to apply it can be seen in
Nowsco Well Service Ltd. v. Canadian Propane Gas & Oil Ltd. (1981)
122 D.L.R. (3d) 228.
David Latham Q. C. and James Badenoch for the plaintiff. It is quite
clear from the evidence and the approach of the trial judge that the
decision which is the subject of this appeal is correct. The findings of
fact made in this case would have been sufficient for the matter to be
dealt with on orthodox lines but, in any event, they support the
plaintiffs case that the application of the principles in McGhee [1973] 1
W.L.R. 1, which is correctly decided, decides the case in the plaintiffs
favour. The plaintiff does not assert that McGhee decides as a matter of

1078
Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

law that there is a transfer of the burden of proof of causation to the

defendants in a way which would be contrary to the traditional approach.
In difficult cases one must take a broader view of the question of
causation. The analysis of the legal concept of causation cannot be
conducted like a scientific inquiry. A more realistic approach based on
common sense is preferable: see the speeches of Lord Reid and Lord
Salmon in McGhee and Lord Sumner in Weld-Blundell v. Stephens
[1920] A.C. 956. In applying common sense to the question of causation
one must take a robust attitude which is intended to achieve a just
result. Perhaps the most robust example of such an approach, which has
subsequently been suggested as going too far, is Baker v. Willoughby
[1970] A.C. 467, 495 per Lord Pearson. The robustness of approach
taken in that case was criticised by Lord Edmund-Davies in Jobling v.
Associated Dairies Ltd. [1982] A.C. 794, 806 and 808.
The relevance of Bonnington Castings Ltd. v. Wardlaw [1945] A.C.
613 is essentially twofold (1) it indicates one way of looking at the
problem of causation namely, by taking an overall view which is
consistent with the approach in McGhee and (2) it clearly shows that the
question for determination in a case like the present is that the plaintiff
only has to show that there was a material contribution to the cause of
his injury. Those points are not controversial and they follow from the
defendants' own analysis of Bonnington. Nicholson v. Atlas Steel Foundry
and Engineering Co. Ltd. [1957] 1 W.L.R. 613 which followed
Bonnington does not take the solution any further. Gardiner v.
Motherwell Machinery and Scrap Co. Ltd. [1961] 1 W.L.R. 1424 is
authority for the proposition that where the medical evidence present
difficulties the plaintiff can nevertheless establish his case by pointing to
a series of facts which, independent of the medical evidence, ultimately
lead to one conclusion: see per Lord Reid at pp. 1428-1429. Lord
Cohen and Lord Hodson both agreed with Lord Reid's reasoning. That
case is the logical precursor of McGhee. The conclusion of their
Lordships in McGhee was that there was only one result they could
reach on the facts.
McGhee [1973] 1 W.L.R. 1 identifies the circumstances in which a
judge can and should infer a causal relationship between a breach of
duty and damage even though it is not possible to establish by direct
evidence (expert or otherwise) whether the damage would or would not
have occurred without that breach of duty. The circumstances are
correctly set out by Mustill L.J. at pp. 771-772. The majority of the
Court of Appeal drew the inference without reversing the orthodox
burden of proof. The rationale for drawing the inference in such
circumstances was explained in terms which indicate the ordinary and in
most cases unspoken application of common sense. The nub of the
problem in the present case is that the plaintiff was born premature; his
blood vessels and retina were not ready which made him vulnerable to a
number of other events as well as being given an excessive dose of
oxygen. It was the duty of the defendants to do something about it.
They failed to prevent excess oxygen being given to the plaintiff.
Although there are certain passages in Mustill L.J.'s judgment which
could be criticised, at the end of the day the way in which he applied

"

1079
1 A.C.

Wilsher v. Essex A.H.A. (H.L.(E.))

McGhee and the guidelines set out in that case was correct. It might be
helpful to look at a number of Canadian authorities where McGhee was
discussed: see Seyfert v. Burnaby Hospital Society (1986) 27 D.L.R.
(4th) 96; Deacon v. Heichert (1984) 9 D.L.R. (4th) 680; Schierz v.
Dodds [1981] C.S. 589 and Delaney v. Cascade River Holidays (1983) 44
B.C.L.R. 24.
Brooke Q.C. replied.
Their Lordships took time for consideration.

j^

10 March. LORD BRIDGE OF HARWICH. My Lords, the infant

plaintiff was born nearly three months prematurely on 15 December
1978. He weighed only 1200 grammes. In the first few weeks of life he
suffered from most of the afflictions which beset premature babies. He
passed through a series of crises and very nearly died. The greatest
danger which faces the very premature baby, on account of the imperfect
function of incompletely developed lungs, is death or brain damage from
failure of the oxygen supply to the brain. That Martin not only survived
but also now retains unimpaired brain function is due both to the
remarkable advances of medical science and technology in this field in
comparatively recent years and to the treatment he received in the
special care baby unit of the Princess Alexandra Hospital, Harlow.
Tragically, however, he succumbed to another well-known hazard
of prematurity. He suffers from retrolental fibroplasia ("RLF"), an
incurable condition of the retina which, in his case, has caused total
blindness in one eye and severely impaired vision in the other. He
sued the Essex Area Health Authority ("the authority") who are
responsible for the Princess Alexandra Hospital, Harlow, on the ground
that his RLF was caused by an excess of oxygen tension in his
bloodstream in the early weeks attributable to a want of proper skill and
care in the management of his oxygen supply. The action was heard by
Peter Pain J. and the trial lasted 20 days. In addition to the evidence of
the medical and nursing staff at the hospital, the judge heard expert
evidence from two paediatricians and two ophthalmologists called for
the plaintiff and from three paediatricians and one ophthalmologist
called for the authority. All were highly qualified and distinguished
experts in their respective fields. In addition, no less than 24 articles
from medical journals about RLF covering 129 foolscap pages of print
were put in evidence.
The allegations of negligence against the authority related to two
quite distinct phases of Martin's treatment. The first concerned the first
38 hours after his birth. In order to monitor the partial pressure of
oxygen ("PO2") in the arterial blood of a premature baby, it is standard
practice to pass a catheter through the umbilical artery into the aorta.
This enables the PO2 to be measured in two ways. At the tip of the
catheter is an electronic sensor connected to a monitor outside the body
which, if correctly calibrated, should give an accurate reading of the
PO2. In addition, an aperture in the catheter close to the sensor enables
samples of blood to be taken for conventional blood analysis at regular
intervals to check and, if necessary, adjust the monitor's calibration.

1080
^.^jef

Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

Again it is standard practice to check the location of the sensor by X-ray y\

after the catheter has been inserted. In Martin's case the catheter was
inserted by mistake into a vein instead of an artery so that the sensor
and the sampling aperture were wrongly located in the heart instead of
the aorta. This meant that they would sample a mixture of arterial and
venous blood instead of pure arterial blood, which would consequently
give a false reading of the level of PO2 in the arterial blood. The house
officer and the registrar who were on duty at the material time and who ^
saw the X-ray which was taken both failed to notice the mistake. The
judge held this failure to amount to negligence for which the authority
were liable. The plaintiff's case in relation to this first allegation of
negligence was that the misplaced catheter gave readings of PO2 well
below the true level of PO2 in the arterial blood which led to excessive
administration of oxygen in an attempt to raise the PO2 level and that in Q
consequence the true PO2 level was excessively high for a substantial
period until the mislocation of the catheter was realised at 8 o'clock on
the morning of 17 December 1978.
A second phase of Martin's treatment alleged to have been negligent
was between 20 December 1978 and 23 January 1979. Between these
dates it was alleged that there were five distinct periods of differing
duration when the medical and nursing staff responsible for Martin's D
care were in breach of duty in allowing the level of PO2 in his arterial
blood to remain above the accepted level of safety. The judge found
that four of these five periods of exposure to an unduly high level of
PO2 were due to the authority's negligence.
In making his finding of negligence in relation to each of the periods
of raised PO2 levels except the first attributable to the misplaced g
catheter, the judge relied upon a principle of law which he thought was
laid down by this House in McGhee v. National Coal Board [1973] 1
W.L.R. 1 and which he had stated in his own earlier decision in Clark v.
MacLennan [1983] 1 All E.R. 416, 427 in the following terms:
"It seems to me that it follows from McGhee that where there is a
situation in which a general duty of care arises and there is a failure F
to take a precaution, and that very damage occurs against which the
precaution is designed to be a protection, then the burden lies on
the defendant to show that he was not in breach of duty as well as
to show that the damage did not result from his breach of duty."
The judge thought that this proposition of law derived support from the
decision at first instance of Mustill J. in Thompson v. Smiths Shiprepairers Q
(North Shields) Ltd. [1984] Q.B. 405. He held that the authority had
failed to prove on a balance of probabilities either that they were not
negligent or that their negligence did not cause or materially contribute
to Martin's RLF. He therefore held them liable in damages and gave
judgment for the plaintiff for 116,199.14.
The Court of Appeal [1987] Q.B. 730 (Sir Nicolas BrowneWilkinson V.-C, Mustill and Glidewell L.JJ) affirmed this judgment by ^
a majority, the Vice-Chancellor dissenting. They gave leave on terms to
the authority to appeal to this House. A number of issues were argued
in the Court of Appeal. They unanimously affirmed the finding of

1081
1 A.C.

Wilsher v. Essex A.H.A. (H.L.(E.))

Lord Bridge
of Harwich

"

negligence against the authority, though by marginally different processes

of reasoning, on the ground of the authority's vicarious liability for the
registrar's failure to observe from the X-ray that the first catheter
inserted into Martin's umbilicus was located in a vein not in an artery.
They unanimously reversed the judges' finding of negligence in relation
to the later periods when the level of PO2 in Martin's blood was raised
on the ground that he had misdirected himself in holding that the
burden of proof was reversed so that it lay upon the authority to show
that they were not negligent. On examination of the evidence the Court
of Appeal found that no negligence was established in relation to these
later periods. No issue arises in the present appeal to your Lordships'
House in respect of either of these conclusions on liability and nothing
more need be said about them. The crucial issue which now arises and
611 which the Court of Appeal were divided in their opinions is whether
the judgment can be affirmed on the ground that any raised level of PO2
in Martin's arterial blood before 8 o'clock on the morning of 17
December 1978 consequent on misplacement of the catheter caused or
materially contributed to Martin's RLF.
My Lords, I understand that all your Lordships agree that this appeal
has to be allowed and that the inevitable consequence of this is that the
outstanding issue of causation must, unless the parties can reach
agreement, be retried by another judge. In these circumstances, for
obvious reasons, it is undesirable that I should go into the highly
complex and technical evidence on which the issue depends any further
than is strictly necessary to explain why, in common with all your
Lordships, I feel ineluctably driven to the unpalatable conclusion that it
is not open to the House to resolve the issue one way or the other, so
that a question depending on the consequence of an event occurring in
the first two days of Martin's life will now have to be investigated all
over again when Martin is nearly ten years old. On the other hand, the
appeal raises a question of law as to the proper approach to issues of
causation which is of great importance and of particular concern in
medical negligence cases. This must be fully considered.
There was in the voluminous expert evidence given at the trial an
irreconcilable conflict of opinion as to the cause of Martin's RLF. It
was common ground that a sufficiently high level of PO2 in the arterial
blood of a very premature baby, if maintained for a sufficiently long
period of time, can have a toxic effect on the immature blood vessels in
the retina leading to a condition which may either regress or develop
into RLF. It was equally common ground, however, that RLF may
occur in premature babies who have survived without any artificial
administration of oxygen and that there is evidence to indicate a
correlation between RLF and a number of other conditions from
which premature babies commonly suffer (e.g. apnoeia, hypercarbia,
intraventricular haemorrhage, patent ductus arteriosus, all conditions
which afflicted Martin) although no causal mechanisms linking these
conditions with the development of RLF have been positively identified.
However, what, if any, part artificial administration of oxygen causing
an unduly high level of PO2 in Martin's arterial blood played in the
causation of Martin's RLF was radically in dispute between the experts.

1082
rf*H,af^i?he

Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

There was certainly evidence led in support of the plaintiffs case that
high levels of PO2 in general and, more particularly, the level of PO2
maintained when the misplaced catheter was giving misleadingly low
readings of the level in the arterial blood were probably at least a
contributory cause of Martin's RLF. If the judge had directed himself
that it was for the plaintiff to discharge the onus of proving causation on
a balance of probabilities and had indicated his acceptance of this
evidence in preference to the contrary evidence led for the authority, a
finding in favour of the plaintiff would have been unassailable. That is
why it is conceded by Mr. Henry Brooke, for the authority, that the
most he can ask for, if his appeal succeeds, is an order for retrial of the
causation issue. However, the burden of the relevant expert evidence
led for the authority, to summarise it in very general terms, was to the
effect that any excessive administration of oxygen which resulted from
the misplacement of the catheter did not result in the PO2 in the arterial
blood being raised to a sufficiently high level for a sufficient length of
time to have been capable of playing any part in the causation of
Martin's RLF. One of the difficulties is that, underlying this conflict of
medical opinion, there was not only a profound difference of view about
the aetiology and causation of RLF in general but also a substantial
difference as to the inferences which were to be drawn from the primary
facts, as ascertained from the clinical notes about Martin's condition and
treatment at the material time and amplified by the oral evidence of Dr.
Wiles, the senior house officer in charge, as to what the actual levels of
PO2 in Martin's arterial blood were likely to have been during a critical
period between 10 p.m. on 16 December when Martin was first being
administered pure oxygen through a ventilator and 8 a.m. the next
morning when, after discovery of the mistake about the catheter, the
level of oxygen administration was immediately reduced.
Having found the authority negligent in relation to the five periods
when the PO2 level was unduly high, the judge added: "There is no
dispute that this materially increased the risk of RLF."
This statement, it is now accepted, was a misunderstanding of the
evidence. Whilst it was common ground that one of the objects of
monitoring and controlling the PO2 level in the arterial blood of a
premature baby in 1978 was to avoid or reduce the risk of RLF, it was
certainly not accepted by the defence that any of the levels to which
Martin was subjected were sufficient in degree or duration to have
involved any material increase in that risk. This misunderstanding was
one of the factors which led the judge to the conclusion that Martin had
established a prima facie case on the issues of causation. He then said:
"But it is open to the defendants on the facts of this case to show
that they are not liable for this negligence because on the balance of
probability this exposure did not cause Martin's RLF."

It was on this premise that the judge examined the issue of causation.
In a judgment which runs to 68 pages of transcript, only two and a half
pages are devoted to this issue. The judge repeatedly emphasised that
the onus was on the authority, saying at one point:

1083
1 A.C.

Wilsher v. Essex A.H.A. (H.L.(E.))

Bridge

of Harwich

"For the purpose of this action I need go no further than to

consider whether the breaches have probably made no substantial
contribution to the plaintiffs condition."
And, again, a little later on: "So I have to consider whether the
exposure that occurred probably did no harm."
After a brief reference to the evidence of one of the plaintiffs
witnesses and one of the authority's witnesses whose answers were based
on an assumption of fact which he was invited to make, the judge
expressed his conclusion in the following passage:
"On the basis of this evidence I find that the defendants fail to show
that the first and third periods of exposure did not do any damage;
indeed the probability is that they did. As to the second, fourth and
fifth
periods the position is more doubtful. The trouble is the lack
of data. The blood gas readings were not sufficiently frequent to
enable us to assess whether the excessively high readings were a
peak or whether they indicate a longer period; indeed, it is possible
that the true figure went higher. The defendants, in my view, have
failed to show that these periods did not cause or materially
contribute to Martin's RLF." (My emphasis.)
Mr. Latham, seeking to uphold the judgment in Martin's favour,
naturally relied heavily on the words I have emphasised in this passage
and pointed to the contrast between the judge's view, thereby expressed,
of the causative effect of what is now the only relevant period of
exposure calling for consideration and his doubts about the effect of
three of the four later periods. He urged your Lordships to read this as
an indication by the judge that, if he had held the onus to lie on the
plaintiff, he would have found it discharged on a balance of probabilities.
The Court of Appeal [1987] 1 Q.B. 730 did not feel able to accede to
a similar submission and I agree with them. As Mustill L.J. pointed
out, at p. 763G, the judge expressed no preference for the plaintiff's
experts on this point. Moreover, it is inconceivable that this very
careful judge, if he had directed himself that the burden of proof lay on
the plaintiff, would not have subjected the complex and conflicting
evidence to a thorough scrutiny and analysis before committing himself
to an orthodox finding of causation in the plaintiff's favour.
Both parties accepted that the conflict of evidence was of such a
nature that it could not properly be resolved by your Lordships simply
reading the transcript. Indeed, we were not asked to examine the
totality of the voluminous medical evidence. Just as Mr. Brooke
accepted that it was not open to the House to dismiss the plaintiff's
claim, so Mr. Latham accepted that, if he failed in the submission which
I have examined and rejected in the foregoing paragraph, he could not
invite the House to make an independent finding in the plaintiffs favour
on the simple basis that the expert evidence on a balance of probabilities
affirmatively established causation.
The Court of Appeal, although they felt unable to resolve the
primary conflict in the expert evidence as to the causation of Martin's
RLF, did make a finding that the levels of PO2 which Martin experienced
in consequence of the misplacement of the catheter were of a kind

1084
Jf Hfche

Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

capable of causing RLF. Mustill L.J., at p. 766D, expressed his anxiety

as to whether "by making a further finding on an issue where there was
a sharp conflict between the expert witnesses, we are not going too far
in the effort to avoid a retrial." But he concluded, at p. 766E, that it
was "legitimate, after reading and re-reading the evidence," to make this
finding based on "the weight of the expert evidence." This finding by
the Court of Appeal is challenged by Mr. Brooke, for the authority, as
one which it was not open to them to make. I must return to this issue
later. But assuming, as I do for the present, that the finding was
properly made, it carried the plaintiff's case no further than to establish
that oxygen administered to Martin as a consequence of the negligent
failure to detect the misplacement of the catheter was one of a number
of possible causes of Martin's RLF.
Mustill L.J. subjected the speeches in McGhee v. National Coal
Board [1973] 1 W.L.R. 1 to a careful scrutiny and analysis and concluded
that they established a principle of law which he expressed in the
following terms, at pp. 771-772:
"If it is an established fact that conduct of a particular kind creates
a risk that injury will be caused to another or increases an existing
risk that injury will ensue; and if the two parties stand in such a
relationship that the one party owes a duty not to conduct himself
in that way; and if the first party does conduct himself in that way;
and if the other party does suffer injury of the kind to which the
risk related; then the first party is taken to have caused the injury
by his breach of duty, even though the existence and extent of the
contribution made by the breach cannot be ascertained."
Applying this principle to the finding that the authority's negligence was
one of the possible causes of Martin's RLF, he held that this was
sufficient to enable the court to conclude that the negligence was "taken
to have caused the injury." Glidewell L.J. reached the same conclusion
by substantially the same process of reasoning. The Vice-Chancellor
took the opposite view.
The starting point for any consideration of the relevant law of
causation is the decision of this House in Bonnington Castings Ltd. v.
Wardlaw [1956] A.C. 613. This was the case of a pursuer who, in the
course of his employment by the defenders, contracted pneumoconiosis
over a period of years by the inhalation of invisible particles of silica
dust from two sources. One of these (pneumatic hammers) was an
"innocent" source, in the sense that the pursuer could not complain that
his exposure to it involved any breach of duty on the part of his
employers. The other source, however, (swing grinders) arose from a
breach of statutory duty by the employer. Delivering the leading speech
in the House Lord Reid said, at pp. 619-620:
"The Lord Ordinary and the majority of the First Division have
dealt with this case on the footing that there was an onus on the
defenders, the appellants, to prove that the dust from the swing
grinders did not cause the pursuer's disease. This view was based
on a passage in the judgment of the Court of Appeal in Vyner v.
Waldenberg Brothers Ltd. [1946] K.B. 50, 55: 'If there is a definite

1085
1 A.C.

Wilsher v. Essex A.H.A. (H.L.(E.))

Lord Bridge
of Harwich

breach of a safety provision imposed on the occupier of a factory,

and a workman is injured in a way which could result from the
breach, the onus of proof shifts on to the employer to show that the
breach was not the cause. We think that that principle lies at the
very basis of statutory rules of absolute duty' (per Scott L.J.). . . .
Of course, the onus was on the defendants to prove delegation (if
that was an answer), and to prove contributory negligence, and it
may be that that is what the Court of Appeal had in mind. But the
passage which I have cited appears to go beyond that, and, in so far
as it does so, I am of opinion that it is erroneous.
"It would seem obvious in principle that a pursuer or plaintiff
must prove not only negligence or breach of duty but also that such
fault caused or materially contributed to his injury, and there is
ample authority for that proposition both in Scotland and in
England. I can find neither reason nor authority for the rule being
different where there is breach of a statutory duty. The fact that
Parliament imposes a duty for the protection of employees has been
held to entitle an employee to sue if he is injured as a result of a
breach of that duty, but it would be going a great deal farther to
hold that it can be inferred from the enactment of a duty that
Parliament intended that any employee suffering injury can sue his
employer merely because there was a breach of duty and it is shown
to be possible that his injury may have been caused by it. In my
judgment, the employee must in all cases prove his case by the
ordinary standard of proof in civil actions: he must make it appear
at least that on a balance of probabilities the breach of duty caused
or materially contributed to his injury."
Lord Tucker said of Scott L.J.'s dictum in Vyner v. Waldenberg Brothers
Ltd., at pp. 624-625:
" . . . I think it is desirable that your Lordships should take this
opportunity to state in plain terms that no such onus exists unless
the statute or statutory regulation expressly or impliedly so provides,
as in several instances it does. No distinction can be drawn between
actions for common law negligence and actions for breach of
statutory duty in this respect. In both the plaintiff or pursuer must
prove (a) breach of duty and (b) that such breach caused the injury
complained of. (See Wakelin v. London and South Western Railway
Co. (1886) 12 App. Cas. 41 and Caswell v. Powell Duffryn
Associated Collieries [1940] A.C. 152.) In each case it will depend
upon the particular facts proved and the proper inferences to be
drawn therefrom whether the pursuer has sufficiently discharged the
onus that lies upon him."
Lord Keith of Avonholm said, at p. 625:
"The onus is on the pursuer to prove his case, and I see no reason
to depart from this elementary principle by invoking certain rules of
onus said to be based on a correspondence between the injury
suffered and the evil guarded against by some statutory regulation.
I think most, if not all, of the cases which professed to lay down or
1 A.C. 198842

1086
^HJUIST

Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

to recognise some such rule could have been decided as they were
on simple rules of evidence, and I agree that the case of Vyner
[1946] K.B. 50, in so far as it professed to enunciate a principle of
law inverting the onus of proof cannot be supported."

Viscount Simonds and Lord Somervell of Harrow agreed.

Their Lordships concluded, however, from the evidence that the
inhalation of dust to which the pursuer was exposed by the defenders' B
breach of statutory duty had made a material contribution to his
pneumoconiosis which was sufficient to discharge the onus on the
pursuer of proving that his damage was caused by the defenders' tort.
A year later the decision in Nicholson v. Atlas Steel Foundry and
Engineering Co. Ltd. [1957] 1 W.L.R. 613 followed the decision in
Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613 and held, in p
another case of pneumoconiosis, that the employers were liable for the
employee's disease arising from the inhalation of dust from two sources,
one "innocent" the other "guilty," on facts virtually indistinguishable
from those in Bonnington Castings Ltd. v. Wardlaw.
In McGhee v. National Coal Board [1973] 1 W.L.R. 1 the pursuer
worked in a brick kiln in hot and dusty conditions in which brick dust
adhered to his sweaty skin. No breach of duty by his employers, the D
defenders, was established in respect of his working conditions. However,
the employers were held to be at fault in failing to provide adequate
washing facilities which resulted in the pursuer having to bicycle home
after work with his body still caked in brick dust. The pursuer
contracted dermatitis and the evidence that this was caused by the brick
dust was accepted. Brick dust adhering to the skin was a recognised p
cause of industrial dermatitis and the provision of showers to remove it
after work was a usual precaution to minimise the risk of the disease.
The precise mechanism of causation of the disease, however, was not
known and the furthest the doctors called for the pursuer were able to
go was to say that the provision of showers would have materially
reduced the risk of dermatitis. They were unable to say that it would
probably have prevented the disease.
F
The pursuer failed before the Lord Ordinary and the First Division
of the Court of Session on the ground that he had not discharged the
burden of proof of causation. He succeeded on appeal to the House of
Lords. Much of the academic discussion to which this decision has given
rise has focused on the speech of Lord Wilberforce, particularly on two
paragraphs. He said, at p. 6:
"But the question remains whether a pursuer must necessarily fail
if, after he has shown a breach of duty, involving an increase of risk
of disease, he cannot positively prove that this increase of risk
caused or materially contributed to the disease while his employers
cannot positively prove the contrary. In this intermediate case
there is an appearance of logic in the view that the pursuer, on
whom the onus lies, should faila logic which dictated the "
judgments below. The question is whether we should be satisfied,
in factual situations like the present, with this logical approach. In
my opinion, there are further considerations of importance. First, it

1087
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Wilsher v. Essex A.H.A. (H.L.(E.))

^"i"^
of Harwich

is a sound principle that where a person has, by breach of a duty of

care, created a risk, and injury occurs within the area of that risk,
the loss should be borne by him unless he shows that it had some
other cause. Secondly, from the evidential point of view, one may
ask, why should a man who is able to show that his employer
should have taken certain precautions, because without them there
is a risk, or an added risk, of injury or disease, and who in fact
sustains exactly that injury or disease, have to assume the burden of
proving more: namely, that it was the addition to the risk, caused
by the breach of duty, which caused or materially contributed to the
injury? In many cases, of which the present is typical, this is
impossible to prove, just because honest medical opinion cannot
segregate the causes of an illness between compound causes. And
if one asks which of the parties, the workman or the employers,
should suffer from this inherent evidential difficulty, the answer as a
matter of policy or justice should be that it is the creator of the risk
who, ex hypothesi must be taken to have foreseen the possibility of
damage, who should bear its consequences."
He then referred to Bonnington Castings Ltd. v. Wardlaw [1956] A.C.
613 and Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd.
[1957] 1 W.L.R. 613 and added, at p. 7:
"The present factual situation has its differences: the default here
consisted not in adding a material quantity to the accumulation of
injurious particles but by failure to take a step which materially
increased the risk that the dust already present would cause injury.
And I must say that, at least in the present case, to bridge the
evidential gap by inference seems to me something of a fiction, since it
was precisely this inference which the medical expert declined to
make. But I find in the cases quoted an analogy which suggests the
conclusion that, in the absence of proof that the culpable addition had,
in the result, no effect, the employers should be liable for an injury,
squarely within the risk which they created and that they, not the
pursuer, should suffer the consequence of the impossibility, foreseeably
inherent in the nature of his injury, of segregating the precise
consequence of their default." (Emphasis added.)
My Lords, it seems to me that both these paragraphs, particularly in
the words I have emphasised, amount to saying that, in the circumstances,
the burden of proof of causation is reversed and thereby to run counter
to the unanimous and emphatic opinions expressed in Bonnington
Castings Ltd. v. Wardlaw [1956] A.C. 613 to the contrary effect. I find
no support in any of the other speeches for the view that the burden of
proof is reversed and, in this respect, I think Lord Wilberforce's
reasoning must be regarded as expressing a minority opinion.
A distinction is, of course, apparent between the facts of Bonnington
Castings Ltd. v. Wardlaw, where the "innocent" and "guilty" silica dust
particles which together caused the pursuer's lung disease were inhaled
concurrently and the facts of McGhee v. National Coal Board [1973] 1
W.L.R. 1 where the "innocent" and "guilty" brick dust was present on
the pursuer's body for consecutive periods. In the one case the
concurrent inhalation of "innocent" and "guilty" dust must both have

1088
i^af^f

Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

contributed to the cause of the disease. In the other case the consecutive A
periods when "innocent" and "guilty" brick dust was present on the
pursuer's body may both have contributed to the cause of the disease or,
theoretically at least, one or other may have been the sole cause. But
where the layman is told by the doctors that the longer the brick dust
remains on the body, the greater the risk of dermatitis, although the
doctors cannot identify the process of causation scientifically, there
seems to be nothing irrational in drawing the inference, as a matter of B
common sense, that the consecutive periods when brick dust remained
on the body probably contributed cumulatively to the causation of the
dermatitis. I believe that a process of inferential reasoning on these
general lines underlies the decision of the majority in McGhee's case.
In support of this view, I refer to the following passages. Lord Reid
said, at pp. 3-4:
_,
"The medical witnesses are in substantial agreement. Dermatitis
can be caused, and this dermatitis was caused, by repeated minute
abrasion of the outer horny layer of the skin followed by some
injury to or change in the underlying cells, the precise nature of
which has not yet been discovered by medical science. If a man
sweats profusely for a considerable time the outer layer of his skin
is softened and easily injured. If he is then working in a cloud of ^
abrasive brick dust, as this man was, the particles of dust will
adhere to his skin in considerable quantity and exertion will cause
them to injure the horny layer and expose to injury or infection the
tender cells below. Then in some way not yet understood dermatitis
may result. If the skin is not thoroughly washed as soon as the man
ceases work that process can continue at least for some considerable g
time. This man had to continue exerting himself after work by
bicycling home while still caked with sweat and grime, so he would
be liable to further injury until he could wash himself thoroughly.
Washing is the only practicable method of removing the danger of
further injury. The effect of such abrasion of the skin is cumulative
in the sense that the longer a subject is exposed to injury the
greater the chance of his developing dermatitis: it is for that reason F
that immediate washing is well recognised as a proper precaution."
He concluded, at pp. 4-5:
"The medical evidence is to the effect that the fact that the man
had to cycle home caked with grime and sweat added materially to
the risk that this disease might develop. It does not and could not G
explain just why that is so. But experience shows that it is so.
Plainly that must be because what happens while the man remains
unwashed can have a causative effect, though just how the cause
operates is uncertain. I cannot accept the view expressed in the
Inner House that once the man left the brick kiln he left behind the
causes which made him liable to develop dermatitis. That seems to
me quite inconsistent with a proper interpretation of the medical "
evidence. Nor can I accept the distinction drawn by the Lord
Ordinary between materially increasing the risk that the disease will
occur and making a material contribution to its occurrence.

1089
1 A.C.

Wither v. Essex A.H.A. (H.L.(E.))

Lo"i Bridge
of Harwich

Pj

H
H

"There may be some logical ground for such a distinction where

our knowledge of all the material factors is complete. But it has
often been said that the legal concept of causation is not based on
logic or philosophy. It is based on the practical way in which the
ordinary man's mind works in the everyday affairs of life. From a
broad and practical viewpoint I can see no substantial difference
between saying that what the defender did materially increased the
risk of injury to the pursuer and saying that what the defender did
made a material contribution to his injury."
Lord Simon of Glaisdale said, at p. 8:
"But Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613 and
Nicholson v. Atlas Steel Foundry Engineering Co. Ltd. [1957] 1
W.L.R. 613 establish, in my view, that where an injury is caused by
two (or more) factors operating cumulatively, one (or more) of
which factors is a breach of duty and one (or more) is not so, in
such a way that it is impossible to ascertain the proportion in which
the factors were effective in producing the injury or which factor
was decisive, the law does not require a pursuer or plaintiff to
prove the impossible, but holds that he is entitled to damages for
the injury if he proves on a balance of probabilities that the breach
or breaches of duty contributed substantially to causing the injury.
If such factors so operate cumulatively, it is, in my judgment,
immaterial whether they do so concurrently or successively."
Lord Kilbrandon said, at p. 10:
"In the present case, the pursuer's body was vulnerable, while he
was bicycling home, to the dirt which had been deposited on it
during his working hours. It would not have been if he had had a
shower. If showers had been provided he would have used them.
It is admittedly more probable that disease will be contracted if a
shower is not taken. In these circumstances I cannot accept the
argument that nevertheless it is not more probable than not that, if
the duty to provide a shower had not been neglected, he would not
have contracted the disease. The pursuer has after all, only to
satisfy the court of a probability, not to demonstrate an irrefragable
chain of causation, which in a case of dermatitis, in the present
state of medical knowledge, he could probably never do."
Lord Salmon said, at pp. 11-12:
"I, of course, accept that the burden rests upon the pursuer to
prove, on a balance of probabilities, a causal connection between
his injury and the defenders' negligence. It is not necessary,
however, to prove that the defenders' negligence was the only cause
of injury. A factor, by itself, may not be sufficient to cause injury
but if, with other factors, it materially contributes to causing injury,
it is clearly a cause of injury. Everything in the present case
depends upon what constitutes a cause. I venture to repeat what I
said in Alphacell Ltd. v. Woodward [1972] A.C. 824, 847: 'The
nature of causation has been discussed by many eminent philosophers
and also by a number of learned judges in the past. I consider,
however, that what or who has caused a certain event to occur is

1090
Jftj^ef

Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

essentially a practical question of fact which can best be answered A

by ordinary common sense rather than abstract metaphysical theory.'
In the circumstances of the present case it seems to me unrealistic
and contrary to ordinary common sense to hold that the negligence
which materially increased the risk of injury did not materially
contribute to causing the injury."
Then after referring to Bonnington Castings Ltd. v. Wardlaw and g
Nicholson he added, at pp. 12-13:
"I do not find the attempts to distinguish those authorities from the
present case at all convincing. In the circumstances of the present
case, the possibility of a distinction existing between (a) having
materially increased the risk of contracting the disease, and
(b) having materially contributed to causing the disease may no
doubt be a fruitful source of interesting academic discussions C
between students of philosophy. Such a distinction is, however, far
too unreal to be recognised by the common law."
The conclusion I draw from these passages is that McGhee v.
National Coal Board [1973] 1 W.L.R. 1 laid down no new principle of
law whatever. On the contrary, it affirmed the principle that the onus
of proving causation lies on the pursuer or plaintiff. Adopting a robust D
and pragmatic approach to the undisputed primary facts of the case, the
majority concluded that it was a legitimate inference of fact that the
defenders' negligence had materially contributed to the pursuer's injury.
The decision, in my opinion, is of no greater significance than that and
to attempt to extract from it some esoteric principle which in some way
modifies, as a matter of law, the nature of the burden of proof of
causation which a plaintiff or pursuer must discharge once he has ^
established a relevant breach of duty is a fruitless one.
In the Court of Appeal in the instant case Sir Nicolas BrowneWilkinson V.-C, being in a minority, expressed his view on causation
with understandable caution. But I am quite unable to find any fault
with the following passage in his dissenting judgment [1987] Q.B. 730,
779:
F
"To apply the principle in McGhee v. National Coal Board [1973] 1
W.L.R. 1 to the present case would constitute an extension of that
principle. In the McGhee case there was no doubt that the
pursuer's dermatitis was physically caused by brick dust: the only
question was whether the continued presence of such brick dust on
the pursuer's skin after the time when he should have been provided
with a shower caused or materially contributed to the dermatitis G
which he contracted. There was only one possible agent which
could have caused the dermatitis, viz., brick dust, and there was no
doubt that the dermatitis from which he suffered was caused by that
brick dust.
"In the present case the question is different. There are a
number of different agents which could have caused the RLF.
Excess oxygen was one of them. The defendants failed to take
reasonable precautions to prevent one of the possible causative
agents (e.g. excess oxygen) from causing RLF. But no one can tell
in this case whether excess oxygen did or did not cause or contribute

1091
1 A.C.

Wilsher v. Essex A.H.A. (H.L.(E.))

Lord Bridge
of Harwich

to the RLF suffered by the plaintiff. The plaintiff's RLF may have
been caused by some completely different agent or agents, e.g.
hypercarbia, intraventricular haemorrhage, apnoea or patent ductus
arteriosus. In addition to oxygen, each of those conditions has been
implicated as a possible cause of RLF. This baby suffered from
each of those conditions at various times in the first two months of
his life. There is no satisfactory evidence that excess oxygen is
more likely than any of those other four candidates to have caused
RLF in this baby. To my mind, the occurrence of RLF following a
failure to take a necessary precaution to prevent excess oxygen
causing RLF provides no evidence and raises no presumption that it
was excess oxygen rather than one or more of the four other
possible agents which caused or contributed to RLF in this case.
"The position, to my mind, is wholly different from that in the
McGhee [1973] 1 W.L.R. 1, case where there was only one
candidate (brick dust) which could have caused the dermatitis, and
the failure to take a precaution against brick dust causing dermatitis
was followed by dermatitis caused by brick dust. In such a case, I
can see the common sense, if not the logic, of holding that, in the
absence of any other evidence, the failure to take the precaution
caused or contributed to the dermatitis. To the extent that certain
members of the House of Lords decided the question on inferences
from evidence or presumptions, I do not consider that the present
case falls within their reasoning. A failure to take preventative
measures against one out of five possible causes is no evidence as to
which of those five caused the injury."
Since, on this view, the appeal must, in any event, be allowed, it is
not strictly necessary to decide whether it was open to the Court of
Appeal to resolve one of the conflicts between the experts which the
judge left unresolved and to find that the oxygen administered to Martin
in consequence of the misleading PO2 levels derived from the misplaced
catheter was capable of having caused or materially contributed to his
RLF. I very well understand the anxiety of the majority to avoid the
necessity for ordering a retrial if that was at all possible. But having
accepted, as your Lordships and counsel have had to accept, that the
primary conflict of opinion between the experts as to whether excessive
oxygen in the first two days of life probably did cause or materially
contribute to Martin's RLF cannot be resolved by reading the transcript,
I doubt, with all respect, if the Court of Appeal were entitled to try to
resolve the secondary conflict as to whether it could have done so.
Where expert witnesses are radically at issue about complex technical
questions within their own field and are examined and cross-examined at
length about their conflicting theories, I believe that the judge's
advantage in seeing them and hearing them is scarcely less important
than when he has to resolve some conflict of primary fact between lay
witnesses in purely mundane matters. So here, in the absence of
relevant findings of fact by the judge, there was really no alternative to
a retrial. At all events, the judge who retries the issue of causation
should approach it with an entirely open mind uninfluenced by any view
of the facts bearing upon causation expressed in the Court of Appeal.

1092
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Wilsher v. Essex A.H.A. (H.L.(E.))

[1988]

To have to order a retrial is a highly unsatisfactory result and one A

cannot help feeling the profoundest sympathy for Martin and his family
that the outcome is once again in doubt and that this litigation may have
to drag on. Many may feel that such a result serves only to highlight
the shortcomings of a system in which the victim of some grievous
misfortune will recover substantial compensation or none at all according
to the unpredictable hazards of the forensic process. But, whether we
like it or not, the law, which only Parliament can change, requires proof B
of fault causing damage as the basis of liability in tort. We should do
society nothing but disservice if we made the forensic process still more
unpredictable and hazardous by distorting the law to accommodate the
exigencies of what may seem hard cases.
Leave to appeal was given by the Court of Appeal on terms that the
authority should not seek an order for costs in this House or for
variation of the orders for costs in the courts below. For the reasons I
have indicated I would allow the appeal, set aside the order of the Court
of Appeal save as to costs and order retrial of the issue whether the
negligence of the authority, as found by the Court of Appeal, caused or
materially contributed to the plaintiff's RLF.
LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage j->
of reading in draft the speech of my noble and learned friend Lord
Bridge of Harwich and I entirely agree with it. For the reasons stated in
it I would allow the appeal and make an order in the terms proposed by
my noble and learned friend.
LORD LOWRY. My Lords, I have had the opportunity of reading in
draft the speech of my noble and learned friend Lord Bridge of E
Harwich. I agree with it and accordingly concur in his conclusions and
in the order which he proposes.
LORD GRIFFITHS. My Lords, I have had the advantage of reading in
draft the speech prepared by my noble and learned friend Lord Bridge
of Harwich. I agree with it and the order which he proposes.

F
My Lords, I have had the advantage of reading in
draft the speech of my noble and learned friend Lord Bridge of
Harwich. I agree with it and the order which he proposes.
Appeal allowed.
Orders of Court of Appeal and Peter
Pain J., save as to costs, set aside.
Case remitted to Queen's Bench
Division for retrial on issue of
causation.
Solicitors: Hempsons; Attwater & Liell, Harlow.
M. F.
LORD ACKNER.

H
END OF VOLUME AND OF APPEAL CASES FOR 1 9 8 8 .