Did he cause it the evidence was if he had warned her

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even if he did warn her, the op eventually would have had to occur, it would have always had the risk. Did he cause it? The evidence was if he had warned her she wouldn’t have let Dr Chappel do the surgery. She said she would have gone to the most experienced throat surgeon she could find . In Australia, the test about Torts Lecture Notes 20
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what a plaintiff would do in response to a warning is purely subjective. It really is, what this person would have done, not what would a reasonable person have done. Subjective test- What would this particular patient do if they’d been given about the warning? And that’s consistent with our court’s attitude of why we have warnings in medical cases, so the person can control their life, this reflects the fact that they have the right to control their life. Must convince the court that’s what they would have actually done and not just using hindsight and the court has to decide what they would have done. But they believe this woman. If she’d been warned she would’ve gone to a different dr. that idea of subjective assessment is reflected in the statute~ S 51(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances. (Chappel v Hart reflected that already, that it was a subjective test, and that’s now provided for in the statute). She says she would have got a better doctor. But the dr’s response was: regardless of which dr you went to, this operation had a risk. There was a risk any dr would perforate your esophagus. D argued: my failure to warn you made it no more likely that you would get the injury; I did not increase the risk. On that particular fact, the court split. 2/3 judges in the majority, Gaudron J and Kirby J said that: if shed gone to a more exp dr, even though it was a tiny risk, it would have been even a little bit tinier if she’d gone to a more exp dr. but 2 of the other judges, McHugh J and Hayne J said: the risk was the same whichever doctor she went to. It was that small a risk. 5 th judge didn’t decide, therefore 2:2. The Court starts with some general points about causation. If the injury wouldn’t have happened without the negligent behaviour, then its often possible to decide it’s a cause (The ‘But for’ test). They say the ‘but for’ test is not the exclusive test just because it shows something could be a cause doesn’t mean it is a cause. If the harm had occurred even if the negligence had not, then the prior conduct is irrelevant (general principles). Did this doctor’s behavior cause this woman’s loss of voice? But for him not warning her would she have been diff? would it be diff if he’d had warned her? Even if the d’s neg exposes the p to a risk, that the p wouldn’t have otherwise be exposed to, that doesn’t always necessarily mean they cause the injury. A d is not liable merely because their neg brings the victim into a
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