Neg on the part of others is reasonably foreseeable

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(neg on the part of others is reasonably foreseeable, fact of life). Negligent in giving treatment is not necessarily a Novus. But court does give a hint that if you change facts a bit, there will be cases where medical negligence will break the chain. Can be some circumstances where medical negligence will be a Novus. Doesn’t apply in these facts but they say there could be a cases where this will occur and that is ‘in an ordinary case where efficient med conditions are available, the original injury does not carry a risk of grossly negligent medical treatment’ . Therefore d will want to argue the doc gave grossly negligent medical treatment. If the later injury is due to grossly neg med treatment then it is possible it will sever the chain. Therefore arguments about whether it was neg med treatment or grossly neg. 2. A coincidence/An abnormal conjunction of events (when the starts align), is often regarded as a Novus. Usually a natural event but don’t have to be. o Sometimes after d’s neg, one of these extraordinary things happen, it will be considered a Novus. P is hit by a car driven negligently and on the way to hospital the ambo is hit by lightning burning them all badly. Is the d liable for the burns? Arguably no. it is a coincidence and the d should not be liable for the lightening injuries. o Chappel v Hart: Justice Haines arguing about why the doc was not negligent for woman losing her voice he said doc didn’t warn her about the risk but he didn’t warn her about lightening either. If she had been hit by lightening in the op theatre, what would actually have occurred? Would dr have caused her burn injuries? No, it would be a Novus. Some voluntary acts and some coincidences can cause a Novus but not all of them do, so which ones do? What is a voluntary human act/coincidence that severs the chain? o The court can chose between two different approaches. Torts Lecture Notes 26
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How did they dec that med neg was a Novus in Mahoney v Kruschich ? Because its rf that it could occur. Medical neg is a for consequence of the injury. Using reasonable foreseeability. But the other approach says we’re looking at causation here, the 3 rd el of the tort of neg. Causation is the only element that doesn’t use reasonable foreseeability. Causation is all about proof on the balance of probabilities. Rf of a late event is not relevant. Should only use probabilities. If say that something’s a Novus where it is unlikely but rf, then it is diff to say on the bop it caused the injury because they 2 diff things. one’s probability and one’s possibilities. So other approach says no you shouldn’t use rf, then what should be used? o 1. Traditionally (Traditional Approach: On the Balance of Probabilities) – because Novus is part of causation, court is only concerned with probabilities ; therefore foreseeability of subsequent event is irrelevant – per Chapman v Hearse .
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