Duty of police and ambulance services : what happens when the plaintiff refuses treatment?

In a recent case the New South Wales Court of Appeal considered the duty of care owed by ambulance and police officers, issues concerning breach and causation and the practical effect of the exclusion of the plaintiff's evidence.

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

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.

What the plaintiff would have done in informed consent cases

Both at common law and under the various civil liability acts, in deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. For plaintiffs in medical negligence claims founded on negligent failure to provide sufficient information (informed consent cases), this onus involves persuading the court to make a favourable determination as to what a particular patient would have done (from a subjective perspective) in the hypothetical situation of the defendant not being negligent (that is, in the event that the medical practitioner had provided sufficient information to the patient)

Practice and Procedures - costs - offer to settle by plaintiff under UCPR r360 for amount of claim plus costs

In JLG Industries Inc v Teetree Pty Ltd [2002] QDC 031 the court considered the implications in terms of costs of an offer to settle by the plaintiff under the UCPR where the element of compromise involved only acceptance of the amount of claim without interest.

Summary judgment for plaintiff

The decision in Burke v Van Eeuwen (unreported, District Court of Queensland, No 1490/2002) reminds practitioners of the importance of an appearance for a party at any hearing of an application, even when a party's representatives may consider an opposing party is clearly not entitled to the order it seeks.

The issue of consent: For the plaintiff or defendant to prove in trespass to person?

In White v Johnston1 the vexed question of whether it is for a plaintiff to prove lack of consent to a trespass to person or for the defendant to establish consent as defence was considered. The court also considered the principles of assessing an award of exemplary damages...

Harry A. Levinson, 9527 Brighton Way, Beverly Hills, California, plaintiff, v. Arthur E. Summerfield, individually and as Postmaster General of the United States, Washington D.C., defendent : points and authorities in support of mottion for preliminary injunction, in the United States District Court for the District of Columbia.

Mode of access: Internet.

State of Michigan, plaintiff, v. State of Wisconsin, defendant.

At head of title: In the Supreme Court of the United States, October term, 1925. Original, no. 19, in equity.

Before an Arbitration Board ... Ralph Emerson Heilman, Chairman ... Franklin Association of Chicago, plaintiff vs. Franklin Union no. 4, defendant : closing argument for the defense by Mr. David J. Saposs ... closing argument for the plaintiff, by Mr. James Hibben ... the decision of the board.

Other documents on the same case are filed with this.

[Opinion of the Supreme Court] of the state of New York, in a cause in which James Field was plaintiff and Charles Field defendant.

The lawsuit arose out of a dispute between the "orthodox" and "Hicksite" branches of the Society of Friends over the possession of a school fund.

Decision of the Court of chancery of the state of New Jersey, in a cause between Thomas L. Shotwell, complainant, and Joseph Hendrickson and Stacy Decow, defendants. Also the opinion of the Supreme court of the state of New York, in a cause in which James Field was plaintiff, and Charles Field, defendant.

Dispute concerning a school fund of the Society of Friends, which was claimed by both Orthodox and Hicksite factions.

Guy T. Helvering, Commissioner and others Defendants-Appellees-Petitioners v. George P. Davis, Plaintiff-Appellant-Respondent : brief for Plaintiff-Appellant-Respondent : Edward F. McClennen, Jacob J. Kaplan for the respondent.

At head of title: Supreme Court of the United States, October term, 1936, no. 910.