Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 72
Material contribution: where
catastrophic injury cases become fatal
by Kirsty O’Donnell, Partner at Digby Brown LLP.
Transport Scotland statistics for 2024 were recently
published and out of 869 road tra昀케c collisions
involving pedestrians, 373 people su昀昀ered serious
injuries and 37 people sadly died. However, are these
statistics truly representative of reality?
trite law however that one must take the victim as
one 昀椀nds them. The true test is whether the injuries
sustained at the time of the accident caused or
materially contributed to their death.
This point was considered in the case of Young v AIG
Europe Ltd [2015[ EWHC 2160 (QB). In this case, the
question before the court was that of causation only.
The pursuer was injured in a road tra昀케c accident and
su昀昀ered a heart attack 2 days later. He then su昀昀ered
a spinal haematoma 4 days later rendering him
paraplegic. It was admitted by the defenders that the
accident caused these injuries. Around 3 weeks later,
he su昀昀ered a non-haemorrhagic stroke. Causation
for this element of the claim was the question
before the court. The court held that although he
had pre-existing risk factors that increased the
likelihood of him su昀昀ering a stroke in the future,
after considering medical evidence, the accident
materially contributed to the stroke occurring and
probably caused it. The court referred to the case of
Alphacell v Woodward [1972] UKHL 4:
In the serious injury team at Digby Brown LLP,
we often see cases where an individual su昀昀ers
catastrophic injuries and then sadly dies weeks,
months or even more than a year later. In situations
like this, one must ask the question, what really
caused this person’s death? It is an important
question to pose because it could be that as well as
the claim to the estate for the individual’s initial
injuries, there are also valid family claims to be
pursued under the Damages (Scotland) Act 2011.
Material contribution is considered in a large body
of case law in Scotland, usually, in industrial disease
cases. The House of Lords case of Bonnington
Castings Ltd v Wardlaw [1956] A.C 613 was the 昀椀rst
case to depart from the usual “but for” test. It held
that alongside proving negligence or breach of duty
on the part of the defender, the pursuer must prove
that the negligence caused or materially contributed
to their injury. It also held that any contribution that
was not de minimis would be material.
“
We often see cases where the pursuer su昀昀ered life
changing spinal cord, brain injuries or polytrauma
injuries at the time of the accident and thereafter,
they develop further medical complications and die
some time later. The situation is not complicated
where this happens a short time after the accident
and the person had no real pre-existing conditions
of note. However, this sort of case is few and far
between.
The judge’s comments are worth bearing in mind
when considering cases where death takes place
sometime later. If one steps back and considers the
position factually, then often the fatal element of
these civil cases becomes clear. This is an important
avenue of investigation for practitioners to ensure
that advice is sound in relation to all aspects of
potential damages in the case. There is no de昀椀nitive
answer as to the cut o昀昀 point for when a fatal case
cannot be pursued if the death occurs some time
later. It can become harder to prove as time goes on
but it is not necessarily the case that a fatal claim
cannot be pursued in these circumstances.
More often than not, people have pre-existing
conditions and the argument is made that
notwithstanding the accident, they would have died
in any event. This is often the case when a person
survives for many months after the accident. It is
EXPERT WITNESS JOURNAL
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 caused a certain event to occur is essentially a
practical question of fact which can be best answered
by ordinary common sense rather than abstract
metaphysical theory”
70
JUNE 2026
