Majority held that causation was made out in medical

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- Majority held that causation was made out. In medical negligence cases, if P shows that D breached the duty of care, this increased the risk that P would suffer an injury, and P did in fact suffer that injury, then a prima facie case of causation is established. It is then up to D to disprove causation. Gaudron & Kirby JJ: increased risk suffices to establish causation in this case, support for McGee Gummow J: the “but for” test is satisfied McHugh & Hayne JJ (dissenting): increased risk is not relevant in this case Majority: No approval or disapproval for the increased risk argument in general. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 23
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Causation in Law NOVUS ACTUS INTERVENIENS – A new act intervening. Wrongs Act , s 51 (1) A determination that negligence caused particular harm comprises the following elements: D’s negligence was a necessary condition of the occurrence of the harm; and it is appropriate for the scope of D’s liability to extend to that harm Wrongs Act , s 51 (4) For the purpose of determining the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party When will an intervening act break the chain of causation? The Oropesa , per Lord Wright: when the intervening act is unwarrantable … disturbs the sequence of events… can be described as unreasonable or extraneous March v Stramare , per Mason CJ: when there are reasons in common sense, logic or policy for refusing to regard the defendant’s negligence as a cause of the plaintiff’s loss Two approaches to intervening acts The foreseeability approach The approach in Haber v Walker Haber v Walker , per Smith J An intervening act will break the chain of causation if it is either: a voluntary human action; or a causally independent event, the conjunction of which with the defendant’s negligent act is so unlikely as to be termed a coincidence When is a human act regarded as voluntary? When the actor has exercised a free choice; and 24
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When that choice is not made under substantial pressure created by the defendant’s negligence ( Haber v Walker , per Smith J) March v Stramare Pty Ltd , per Mason CJ A voluntary human action will not break the chain of causation if the defendant was under a duty not to expose the plaintiff to the risk of injury arising from voluntary human conduct Natural events The chain of causation will be broken only if: the natural event is causally independent of the defendant’s negligence; and the conjunction of this event with the defendant’s negligence is so unlikely as to be considered a coincidence Negligent intervening acts – medical treatment Negligence by a third party may break the chain of causation However, the act must be “grossly negligent” or “inexcusably bad”: Mahony Negligence by the plaintiff may be treated differently Loss of a chance Need to distinguish between:
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