The Privy Council has reaffirmed the doctrine of material
contribution that was, to some extent, already law in their recent
decision in Williams v The Bermuda Hospitals Board. The
Council confirmed that where an injury is caused by two or more
factors operating cumulatively, one or more of which was a breach
of duty, it is immaterial for the purposes of recovering damages
for negligence whether the cumulative factors operated concurrently
The underlying case arose out of a claim for medical negligence.
The claimant, Mr Williams, attended hospital suffering from acute
appendicitis. While he had an appendectomy later that day, there
were serious complications involving sepsis to his heart and lungs
which had developed incrementally over time while he was awaiting
treatment in hospital. The original judge found as fact that there
had been a culpable delay of at least two hours and 20 minutes
prior to the appendectomy, but that the claimant had not proved
that the delay was the cause of the complications to his condition.
This decision was reversed by the Court of Appeal and that reversal
was then endorsed by the Privy Council.
The primary authority for this decision was the House of Lords
case Bonnington Castings v Wardlaw. In Bonnington
a claimant contracted pneumoconiosis through inhalation of dust
containing minute portides of silica during the course of his
employment. The dust inhaled by the claimant came from two sources,
one of which was the pneumatic hammers in the factory, which
involved no negligence on the part of his employers. The second
source was the swing grinders in operation at the factory, and the
emission of dust was a result of the negligence of the
claimant's employer. The House of Lords concluded that, because
the claimant's condition was caused by the total dust ingested,
the important question was whether the dust originating as a result
of the employer's negligence materially contributed to the
Given that the conclusion (as a finding of fact) was that the
dust from the swing grinders had materially contributed to the
claimant's condition, the employer was held liable for damages
arising from the claimant's entire condition.
between Bonnington and Williams were obvious.
However, it was possible to distinguish Williams from
Bonnington because in Bonnington the two causes
had occurred concurrently not successively. While the defendant
argued that this should be a reason for distinguishing
Bonnington, the Privy Council did not agree. They held
that it was immaterial whether the factors operating cumulatively
were simultaneous or consecutive, even though the two factors in
Williams (the appendicitis and the subsequent delay) had
It should be noted that while the Bonnington decision
was reaffirmed, the Privy Council did not consider the evidential
considerations that were important in such cases, although it was
held that the sequence of events might be relevant in considering
as a matter of fact whether the later event had made a material
contribution to the outcome or whether the earlier event had been
overtaken by subsequent events. Notwithstanding this position, as a
general rule, successive events were capable of making material
This decision will of course have ramifications for any
employer, including those within the aviation sector (for example
manufacturing companies or maintenance providers), whose negligent
act may have contributed to an employee's injury. Such
employers should be aware that if their employees are capable of
demonstrating that a factor, caused by a wrongful act, caused
injury and contributed to an overall condition, it does not matter
that that condition may have been caused cumulatively by another
factor (that may or may not in itself be wrongful). Accordingly, a
claimant will succeed in proving causation where he or she can
prove, on the balance of probabilities, that a defendant's
negligence has materially contributed to an invisible injury.
It is common practice for traders, usually when they are the sellers of the goods and the charterers of a vessel, to instruct the carrier to discharge cargoes without production of the original bills of lading and to agree to indemnify the carrier against the consequences of doing so.
The London Maritime Arbitrators Association (LMAA) has published a set of new terms, the LMAA Terms 2017, which are due to come into effect for appointments on or after 1 May 2017. They seek to improve the time and cost-efficiency of the LMAA, while maintaining its ‘light touch' approach.
In aviation, commercial relationships regularly have an international aspect: parties to a contract are often based in different countries, with "performance" of the contract possibly taking place in more than one country (e.g. fuelling and maintenance contracts and other contracts for the supply of goods and services).
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