Intervening causation law in a medical contextThe University of Notre Dame Australia Law Review (2013)
What is the legal position when a plaintiff's tortiously-inflicted accident injuries and ensuing condition are exacerbated by subsequent negligent medical treatment? How will the plaintiff's damages be allocated in terms of causal responsibility between the original tortfeasor and the negligent health carer and his or her insurer? In which circumstances will the plaintiff enjoy a right of contribution from the latter? This article will adopt a comparative law perspective to examine the judicial approaches and tests adopted by the courts of the United Kingdom, Canada, the USA and Australia to resolve the intervening causation issues. It suggests that the current approach of classifying the degree of negligence may be problematic in some circumstances and that an assessment of the degree of causal potency of the negligent medical treatment vis-a-vis the harm sustained may be more appropriate. This article will also consider the legal implications involved in a plaintiff's unreasonable refusal to accept medical treatment for his or her tortiously-inflicted injuries as well as the operation of the novus actus interveniens doctrine in the wrongful birth/conception context where it is alleged, for example, that a mother has unreasonably refused to terminate a pregnancy following upon a physician's negligent failure of contraception or abortion.
Citation InformationHodgson, D. (2013). Intervening causation law in a medical context. The University of Notre Dame Australia Law Review, 2013, 22-55