Medical negligence, causation and 'exceptional cases' under the civil liability legislation

Carver, Tracey (2015) Medical negligence, causation and 'exceptional cases' under the civil liability legislation. Precedent, 127, pp. 58-59.

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Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities, the claimant can prove that the defendant's negligence was 'a necessary condition of the occurrence of the [claimant's] harm'. Causation will then be satisfied by showing that the harm would not have occurred 'but for' the defendant's breach of their duty of care. However, in an exceptional or appropriate case, sub-section 2 of the legislation provides that if the 'but for' test is not met, factual causation may instead be determined in accordance with other 'established principles'. In such a case, 'the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed' on the negligent party.

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ID Code: 89651
Item Type: Journal Article
Refereed: No
Additional URLs:
Keywords: Powney v Kerang and District Health [2014] VSCA 221, medical negligence, negligence, causation, exceptional cases, evidentiary gap, civil liability legislation, Wrongs Act 1958 (Vic), s 51(2)
ISSN: 1449-7719
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 > Australian Centre for Health Law Research
Current > Schools > School of Law
Copyright Owner: Copyright 2015 Australian Lawyers Alliance
Copyright Statement: This article first appeared in Precedent, the journal of the Australian Lawyers Alliance, issue 127, published in March/April 2015 (Sydney, Australia, ISSN 1449-7719), pp 58-59. It has been reproduced with the kind permission of the author and the ALA. For more information about the ALA, please go to:
Deposited On: 29 Oct 2015 03:16
Last Modified: 31 Oct 2015 18:49

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