Abstract
The District Court of Western Australia has now given
consideration twice, albeit in obiter remarks, to the alternative
"exceptional/alternative case" causation pathway set out
in state/territory civil liability legislation, in the context of
medical negligence claims. These two first instance decisions are
of interest, however the validity of its application in future
decisions would benefit from judicial consideration at the
appellate level.
Introduction
Readers of this publication will be quite familiar with the
factual/normative causation approach introduced more than 15 years
ago in the civil liability legislation. Considered by the High
Court 10 years ago in Adeels Palace Pty Ltd v Moubarak, it
is now quite clear that in cases where the Civil Liability Act 2002
(NSW) or equivalent statutes are engaged, it is the applicable
statutory provision that must be applied.1
