Date: Sat, 21 Oct 2006 07:58:01 +1000

From: Bill Madden

Subject: Medical Negligence and Causation

Dear Jason & others,

The Ahmed v Stefaniu decision will always remind the Australian lawyers amongst us of the Presland case.

In Presland, the wrongly released psychiatric patient was himself the plaintiff. He claimed for his own killing of his brother's girlfriend, which he later realised to be wrong. He succeeded at first instance. (A media frenzy ensued.) The decision was overturned 2/1 on appeal.

Factual causation was not an issue in Presland however Santow JA argued that under normative aspects of causation, it would be unjust to render the defendants legally responsible for a non-physical injury traced back to unlawful but not criminal conduct.

Of course in NSW we now have a statutory framework for causation in most civil cases, requiring a Court to expressly consider factual and normative aspects. Civil Liability Act NSW 2002 section 5D is available online here.

Regards
Bill Madden

Jason Neyers wrote:

Colleagues:

For an interesting case dealing with standard of care and causation in relation to a psychiatrist and a murder, see Ahmed v. Stefaniu.

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