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On the basis of that value that they should be

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rights infringed by 2 wrongdoers. On the basis of that value, that they should be compensated, we should override the ‘but for’ test. P shouldn’t be worse off just because they happened to be injured by 2 people (value judgment- override the ‘but for’ test, it’s unfair otherwise). Deane J : criticized the ‘but for’ test, but he stuck with it, but he said there were many exceptions to it. McHugh J said : it should be the exclusive test (but Chappel v Hart shows that he is wrong, it is not the exclusive test). But for a while he wanted it to be the exclusive test. He thought causation should be a truly factual issue and there should be none of this common sense stuff coming in, should be left for remoteness but he’s wrong! * Chappel v Hart (1998) especially Kirby J and Hayne J (limited reference CB 300) (HC Case): (dealing with warnings, like the case of Nagle v Rottnest Island Authority ). Mrs. Hart, P, suffered a throat condition that could only be corrected by surgery. Dr Chapel is the throat expert. He operated on her, to fix her condition, and during the operation he perforated her esophagus, which meant she got an infection and ultimately paralyzed her vocal cords meaning she lost her voice. She was a school teacher and that meant she couldn’t teach anymore. No matter how well the operation was done there was always this small risk of this happening, it wasn’t because he was a lousy doctor, there was just always this small risk of a perforation. (like F v R (Tubal ligation, always this small risk that accompanies the operation, and something like this might happen no matter how good the doctor is). She didn’t claim he’d been negligent in the op, it wasn’t his fault it happened, BUT ( Rogers v Whitaker) before the operation she said to him “what are the risks to my voice”, he knew there was always this very small risk of perforation but he didn’t tell her, it was a very rare thing to happen and he chose not to tell her. Is it a breach of his duty? Did he breach his doc? Rogers v Whitaker; F v R say that: ‘ doctors must warn patients of material risks’ , two ways you can have a material risk: 1. if it’s a risk a reasonable person would want to know about. 2. If it’s a risk this person clearly wants to know about. This one is the second one, she actually asked . She wanted to know about this risk and he didn’t tell her. Here is a clear breach of his duty. But did his failure to warn her cause the loss of her voice? The operation always had that risk. Unlike Rogers v Whitaker (which was a purely cosmetic reason for her procedure, she wouldn’t have had it if she had know about the risk), this woman would have had to have surgery eventually. She didn’t have to have it today but she had to have it sometime if she was going to fix her throat. Given there was always that risk of infection whenever she had the operation, did he cause the injury? In Rogers v Whitake r causation isn’t an issue, because we know the only reason she had the operation was because the Dr didn’t warn her, but here even if he did warn her, the op eventually would have had to occur, it would have always had the risk. Did he
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