Wilsher v. Essex Area Health Authority
Encyclopedia
Wilsher v Essex Area Health Authority [1988] AC 1074 is an English tort law
case concerning the "material increase of risk" test for causation
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. The Court found that since the hospital breached its duty and thus increased the risk of harm, and that the plaintiff's injury fell within the ambit of that risk, the hospital was liable despite the fact the plaintiff had not proved the hospital's negligence had caused his injury.
In a minority view, Mustill LJ. argued that if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct related, then the defendant is taken to have caused the injury even though the existence and extent of the contribution made by the breach cannot be ascertained.
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
case concerning the "material increase of risk" test for causation
Causation in English law
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
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Facts
The defendant hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that could have led to blindness. On the "balance of probabilities" test, the hospital would not be liable, since it was more likely that one of the alternate risks had caused the injury. The Court of Appeal applied the "material increase of risk" test, first espoused in McGhee v. National Coal BoardMcGhee v. National Coal Board
McGhee v National Coal Board, [1972] 3 All E.R. 1008, 1 W.L.R. 1, is a leading tort case decided by the House of Lords. The Lords held that where a breach of duty has a material effect on the likelihood of injury then the subsequent injury will be said to have been caused by the breach.-Facts:James...
. The Court found that since the hospital breached its duty and thus increased the risk of harm, and that the plaintiff's injury fell within the ambit of that risk, the hospital was liable despite the fact the plaintiff had not proved the hospital's negligence had caused his injury.
Judgment
The House of Lords found that it was impossible to say that the defendant's negligence had caused, or materially contributed, to the injury and the claim was dismissed. It also stated that McGhee articulated no new rule of law, but was rather based upon a robust inference of fact (this understanding of McGhee was rejected in Fairchild v Glenhaven Funeral Services Ltd).In a minority view, Mustill LJ. argued that if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct related, then the defendant is taken to have caused the injury even though the existence and extent of the contribution made by the breach cannot be ascertained.