All they were saying on these particular facts they

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increased risk WILL not always establish causation. All they were saying on these particular facts they are making an exception. Effectively they held that both employers were liable, concern for employers suffering indeterminate liability was outweighed by the need to compensate the employee. (iii) INCREASED RISK AS A CAUSE (only when unsure of cause) Court can also modify the test where the court cannot be sure the Defendant’s act caused the harm but it is said that D’s breach increased the risk of P suffering material harm No clear authority in Australia (see Chappel v Hart)
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McGee v National Coal Board DERMATITIS, NO SHOWERS Facts: P worked in factory cleaning kilns, employer did not provide showers, was covered in brick dust, developed dermatits. Issue: It is not certain whether providing washing facilities would have actually stopped the development of dermatitis- but it was clear that lack of shower facilities materially increased the risk. Held: It was enough for factual causation that D’s act materially increased the risk that did in fact eventuate. (However only prima facie; it is still open for D to show did not cause harm; also said in Chappel v Hart) Chappel v Hart THROAT SURGERY Facts: P required throat surgery, before performing operation failed to warn P there was a very small risk her voice could be damaged due to the operation despite asking him about risks of operation. This was not elective surgery; P would have had to have operation sooner or later. Even if can establish bod she would have trouble showing causation. Applying ‘but for’ test consider; D could argue she needed surgery anyway. P however had response to argument, had she been warned would have gone to the very best expert in the area and got them to carry out the operation. P argued an increase risk here by failing to warn her of possible harm increased risk she would suffer damage to voice because she was unable to go to best in the field. Held: FAILURE TO WARN INCREASED RISK: had she gone to a better surgeon the risk would have lessened. Majority held causation made out on the facts. However lacked cohesion on why. 2 said P lack to tell her of risk sufficed in providing prima facie increased causation. (Increased risk sufficient to establish causation in this case.) Gummow did not talk about increased risk. Thought it was irrelevant as the ‘but for’ test established in this case: what would have happened if P was warned is that she would have gone to best expert to perform operation and the chance of damage to voice occurring in that case would have been lower. On the balance of prob had she been warned is that she would not have had damage to her voice. Deeper reason why cant argue causation in this case: Hayne. No matter who performs operation still same standard of care. NO CLEAR AUTHORITY AT ALL.
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