If p can prove on bop that they would not have

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- If P can prove on BOP that they would not have suffered injury but for the negligence = causation; if not = might not be a cause. CAUSATION Barnett v Chelsea & Kensington Hospital Management Committee FACTS: P’s husband drank tea at work and then felt ill. He went to the hospital but the doctor was at home sick so the nurse called him and described the symptoms over the phone. The doctor said for him to go home and rest. The man died 5 hrs later from arsenic poisoning. HELD: DOC + breach BUT no causation. But for the doctors negligence the plaintiff may still have died. P couldn’t prove on the balance of probabilities that he would have been saved if treated.
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2. Common Sense Section 51(2): If but for test fails courts should consider whether or not or why responsibility for the harm should be imposed on the negligent party. - E.g. where there are multiple concurrent or sequential causes. - P can recover from 1 or all. 31 March v Stramere FACTS: D parked his fruit and veg truck in the middle of a road at night with lights on. P drove and crashed into the truck. Issue: Was there contributory negligence? HELD: D’s negligence was also a cause. But for test is useful but not sole test . Must be applied subject to certain qualifications. Chappel v Hart (1998) FACTS: Mrs. Hart had a throat condition. The only was to fix it was to have surgery. During the operation, the doctor perforated her oesophagus (no negligence just risk of surgery) and she got an infection. This lead to paralysis of her vocal chords and she had to resign from her teaching job. Prior to the surgery the doctor informed her of the risk of perforation but not of infection/paralysis. She asked a question proving that she attached significance to the outcome so the doctor definitely breeched. She would’ve had to have the operation anyway. She may have gotten a second opinion and risk MAY have been smaller with a more experienced doctor (split) but she may have gotten injury anyway. HELD: Causation Start with ‘but for test’ then common sense/policy . Maj held that the ‘but for test’ satisfied + no common sense reason why they should find for the doctor – Doctor’s DOC would be robbed of content . Kirby: Want to provide a culture among doctors to provide information. D not liable just because their negligence put the victim into a temporal and spatial position where the plaintiff encounters a regular hazard provided they do not place a handicap on them. Cutting edge issues: Loss of chance – UK stance – can’t claim; AU torts protects against ‘unreasonable care’ not ‘the best’ care; Increased risk – P must prove increased risk + cause (Kirby/Lord Wilberforth McGee’s ) .
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Section 50: A person who owes a duty to warn must take reasonable care in giving that warning.
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