In this intermediate case there is an appearance of

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Unformatted text preview: f, after he has shown a breach of duty, involving an increase of risk o f disease, h e 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, o n w h o m the onus lies, should fail ... The question is whether w e should be satisfied ... with this logical approach. In m y opinion, there are further considerations of importance. First, it is a sound principle that where a person has, b y breach of a duty of care, created arisk,and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it h ad some other 34 cause. This case also stands as support for the proposition above that the evidentiary onus shif back and forth between plaintiff and defendant during the court process. If in the case above the defendant were to introduce evidence which showed the employee worked during the evening hours for another employer with duties handling toxic chemicals known to create a high risk of dermatitis, this may be enough for the defendant to escape liability. If, in rebuttal, the plaintiff employee were to show that the chemical plant w he worked at night issued protective clothing, filtered personal breathing apparatus and other safety equipment which alleviated the risk of contracting dermatitis, the onus migh [1973] 1 W.L.R. 1. 205 then shift back to the defendant to prove s o m e h o w the issued apparatus w a s deficient or perhaps that another cause was operative. The onus which shifts in these circumstances is not the legal onus, but the evidentiary onus.35 The court will weigh each piece of evidence produced in court to ascertain the legal credibility to be assigned to it, and a matrix of both evidence and argument will comprise each party's respective case. When the parties finally rest, the plaintiff has either discharged the legal onus of evidentially proving the elements of the case to the requisite standard, or the case fails altogether. The court's willingness to assume the causal nexus may also be explained by reference to a social policy exercised by the court in sympathy with the plaintiff where there is an inherent difficulty in overcoming the burden of proof in disease cases in general, or perhaps by a tacit understanding by the bench that knowledge is incomplete, coupled with an intuition of the defendant's guilt. These considerations, which are extra-legal and, ex-hypothesi, are precluded from open consideration in court judgments, were noted by Kirby J. in Chappel, who recognised the intrusion of "extra-legal and unexpressed values" related to the causation issue. Although to Kirby J. there is a clear problem with the legal approach to the issue of causation, His Honour could still not offer a clear and unequivocal solution to the quandary where he found "a large element of intuition in deciding such questions which may be insusceptible to detailed and analytical justification [and] not susceptible of reduction to a satisfactory formula."3 34 McGhee v National Coal Board [1973] 1 W.L.R. 1 at 6 per Lord Wilberforce. This point was carefully pointed out in the Transcripts of Naxakis v Western and General Hospital and Anor. by Kirby J. in conversation with Mr. Moshinski for the appellant. Transcripts of Proceedings 16 November 1998, http://www.austlii.edu.aU/au/other/hca/transcriDts/1998/M43/l.html morning. It is also in the principal judgment at (1999) 162 A.L.R 540 at 561, also Gaudron J. at 547; Hamer, D. 1999, p. 34 of 74. 36 Chappel v Hart [1998] H C A 55, p. 22; Honore, 1974, "Causation and Remoteness of Damage", in MacCormack and Birks (eds.) 1986, The Legal Mind, Oxford University Press, p. 1-43; 35 206 It is also possible to characterise cases similar to Chappel as a loss of a chance to avoid the injury, which is covered in a separate section below. Cases like McGhee (see above) must also consider whether a concurrent cause was active which contributed to the injury of the plaintiff, further complicating the court's task. If justice is the overriding goal the court in the disposition of any case, increased medical knowledge regarding multiple possible causes of a disease or other injurious medical conditions may not be helpful to courts in disposing of cases. Considerations of multiple causes of a condition, and subsequent losses, show that courts, in the name of justice, are attempting to determine whether the plaintiffs loss should be recovered from the defendant, or whether in law there was a new, supervening, or alternative explanation for the plaintiffs detrimental change in position. Novus Actus If there is some intervening act or cause that breaks the link between the plaintiff and acts or omissions of the defendant, then the court may rule that the intervening act of some other circumstance, or novus actus interveniens, is such as to excuse the defendant from the burden of recompense to the plaintiff, as the 'chain of causation' is broken. Thus, courts recognize the intricate web of circumstances which may surround the loss or injury to...
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This note was uploaded on 09/03/2012 for the course LAW 1501 taught by Professor Garva during the Three '12 term at University of Adelaide.

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