Temporal and spatial position where the plaintiff

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temporal and spatial position where the plaintiff encounters an ordinary hazard of life, provided the neg does not impose a handicap on the p in meeting the hazard. Even if shed gone to another dr, would still have the risks but he’s deprived her of a chance to go to another dr. He deprived her of choosing- policy consideration. Ppl should be able to choose what happens to them . HC Case: Did d’s failure to warn her of the risk cause her injury given the risk existed whether he warned her or not? All of the judges found the but for test was satisfied. Using the but for test it was a cause of the injury, his failure to warn was a cause of her injury. But the issue then became: are there any common sense reasons to override that result and say his f to warn is not a cause. 3/5 say his failure to warn was the legal cause of the injury, 3 find the dr liable and 2 don’t. The 2 in the minority are McHugh and Hayne. And the majority were Gaudron, Gummow and Kirby. Look at the report (b) Increased Risk as a Cause Factory belching out smoke onto a town. In smoke a substance that’s carcinogenic. Some get cancer but exposure to smoke increase risk of getting cancer. Factory owes doc to town. If you get cancer must prove it was the smoke that caused the cancer, not that you just happened to get it anyway. Should p who comes to court with cancer lose if they can’t prove they’re in the 6% that got cancer. Policy? Shouldn’t factory be liable for pumping out gases that cause cancer? If impossible to prove cancer is it fair that they will lose the case? Can’t make out causation. Issue. o McGhee v National Coal Board [1972] (British case): workplace scenario. P worked for d, cleaning brick kilns (ovens) when bricks finished being made, his job was to go into oven. Hot sweat a lot. When sweat lots of brick dust stuck on them. Not negligent to have men doing work that way, but what was negligent that boss didn’t provide showers for them to shower after the work, kept dust on them for longer than should have. P went on to develop serious case of dermatitis. But medical evidence could’ve said that he would’ve got it even if he had showered. Not sure if he would’ve got it even if he had showered but could’ve said risk was materially increased by not showering. But can’t prove which group he’s in. Should he win? HoL found d liable. Clearly breached doc, and let p get away with causation even though he couldn’t have shown it. Lord Wilkins talks bout cases where p proves breach increases risk of disease. Prima facie law required p to prove it was that inc that cause their illness, must prove they were in 6%, not the 5%. If p can’t do that, then they must lose, have not satisfied burden of proof. But says seems to follow, important considerations. Pg 306 ‘ev pov, why should a man prove that employer should’ve taken certain precautions namely adit to risk that caused or contrib. to injury, impossible to prove creator of risk who should’ve foreseen the risk.” Put on d even though they can’t foresee the possibility of risk. Bop swaps to d to prove they didn’t do it. Sound principle that person who causes risk prove that it
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