2 more significant treatment requires greater

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2. More significant treatment requires greater disclosure 16
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3. Whether the patient asks questions 4. Patient reactions need to be considered ( stress or anxiety) 5. General circumstances. The nature of the matter to be disclosed The nature of the treatment The patient’s desire for information The patient’s temperament and health Expert testimony is relevant but not decisive. Rogers v Whitaker (1992) 109 ALR 625 (CB 259) When providing information or advice, doctors must disclose all “material” risks A risk is material if: a reasonable person in the plaintiff’s position would be likely to attach significance to it; or the doctor knows, or ought to know, that this particular patient would be likely to attach significance to it If information would be detrimental to a patients health it need not be disclosed . (vi) Legislative Standards – Miscellaneous provisions Failure to comply with a legislative standard is not conclusive evidence of a breach However, it is relevant evidence Wrongs Act, s 49 The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which D may be responsible The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done The subsequent taking of action that would (had the action being taken earlier) have avoided a risk of harm does not of itself: 17
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give rise to or affect liability in respect of the risk, or constitute an admission of liability in connection with the risk Wrongs Act, s 14 G (2) In determining whether the plaintiff has established a breach of the duty of care owed by the defendant, the court must consider (among other things): whether the plaintiff was intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication; and whether the plaintiff was engaged in an illegal activity 18
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PROOF – CAUSATION Reference: CB chap 3 Proof The onus is on the plaintiff to prove that, on the balance of probabilities, the defendant’s negligence caused his or her injuries. Proof by inference is acceptable proof. Wrongs Act 1958 (Vic) s52 - In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities , any fact relevant to the issue of causation. WA s52 – Essentially saying: Burden of proof on the P. Standard of Proof = Balance of Probabilities Proof by Inference Findings of primary facts: facts which are directly proven Inferences from primary facts: inferences drawn from the facts which are proven – Causation will always be an inference. Holloway v McFeeters (1956) 94 CLR 470 (CB 284) - Inferences must meet the standard of proof.
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