Bop swaps to d to prove they didnt do it sound

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possibility of risk. Bop swaps to d to prove they didn’t do it. Sound principle that person who causes risk prove that it was not the risk that caused the p’s injury. o Old fashioned approach. If p cannot prove, then cannot win. o Chappel v Hart (1998) 72 ALJR 1344 especially Kirby J 1367-8 : (Aus case) relevant- Kirby in obiter, agrees with what j said before in McGhee . Largely intuition but.. pg 1365 p3 Kirby- ‘The but for test is an appropriate test; however is not the exclusive test.’ Policy considerations- breach was a cause. Didn’t operate not properly. Would’ve encourage a superior standard of work by doctors if find d guilty of injury. Encourage doctors to give better information to patients. Honore: reason for duty to warn so people can make choices about their life- what’s going on and how it’s going to be. Dr violated that right. Law should indicate tat right. Kirby justifies his decision: risk he failed to warn her bout (losing her voice) was the very thing that happened to her. Risk happened to be a cause. Pg 96. Patient warned bout risk must accept them. Bear risk she asked the surgeon and got no answers. Mrs. Hart if warned would not have undergone op when she did. J Hayne minority view: agreed with facts, if told bout risk p would have gone to diff dr. small risk, so would not have had same result if op on a diff day or with diff dr. but all doctor did was cause her to be in op room on the day (that was the only breach). In the same special position of where injury occurred that day, override result and say Torts Lecture Notes 21
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not a cause because its just a coincidence. Kirby: not a coincidence, precisely the thing she should’ve been warned about. Hayne: no diff if she were in the op room and struck by lightening (coincidence). Kirby: not enough happened to be the same, otherwise if she had been in op room and struck by lightening and lost her voice, not just a coincidence. Kirby: If but for the negligent act or omission the actual damage suffered by the plaintiff would not have occurred, it will often be possible to conclude the issue of causation in the p’s favor. Similarly, where the damage would probably have happened anyway, it will often be possible to conclude that the act/omission was not the cause (Pg 1365 report). o Loss of chance - must be harmed in torts to sue. What kind of harms can p sue for? Lost a chance as injury. Certain time that can take a case to court. Lost the chance to try and win. More than negli chance that could’ve won. Harm was loss of chance. Economic loss. Chapel v hart: injury was physical- or loss of chance to go to a better/different dr. solicitors pursued as a physical injury, majority treated it as that. Open if she would’ve won that if she would’ve pushed it. Idea from eco case into cases against doctors. Acknowledge chance if pursed, although would be difficult. Hayne J: loss that p suffered was loss of chance to put off the op. risk was same for any op, loss not worth much. P i39 “compensate for , not for those who have had reasonable care but not the best care..”. Did she receive reasonable care? Regarding that all
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