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Proof of causation in informed consent cases : establishing what the plaintiff would have done

Cockburn, Tina & Madden, Bill (2010) Proof of causation in informed consent cases : establishing what the plaintiff would have done. Journal of Law and Medicine, 18(2), pp. 1-15.

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Abstract

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff’s ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff’s prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court’s reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.

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ID Code: 38262
Item Type: Journal Article
Keywords: medical , medical negligence, informed consent, causation, civil liability
ISSN: 1320-159X
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Tort Law (180126)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Law and Justice Research Centre
Current > Schools > School of Law
Deposited On: 01 Nov 2010 09:28
Last Modified: 29 Nov 2013 10:41

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