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Warning of Risk - Would you have acted differently? |
Most people genuinely believe that if given the option of doing something that might allow them to avoid an injury, they would do it. However, the courts have found that reliably this can only be determined by reference to 'objective factors', particularly a person's attitude and conduct at or about the time any failure to warn them of a risk occurred. |
In one case, a woman argued that a failure on the part of a cinema to warn customers that the cinema seats retracted automatically was responsible for her injury. |
The judge considered that evaluating what someone would have done if a warning sign had been displayed was a matter of hypothesis. It was considered relevant that the woman was distracted and preoccupied by a highly agitated child in her care, and therefore unlikely to take into account any message in a sign, which would only have been seen fleetingly, if at all. Secondly, the person's movement in seating herself was not deliberate and conscious. As indicated by her imperfect attempt to gauge the presence and height of the seat behind her, it was a hurried, virtually instinctive move, unsurprising in the circumstances. |
In medical treatments, a number of factors have been identified as relevant when considering cause of an injury. These include the undisclosed degree of risk, the patient's desire for treatment (one example being a patient's enthusiasm for cosmetic surgery) and the need for treatment (including the prognosis without the treatment). |
In a recent case, a judge noted as relevant factors: the seriousness of the person's need for corrective surgery, her evident willingness to undergo the risks of a general anaesthetic (risks with which she was familiar because of her medical background), her failure to ask specific questions about risk, and the fact that the possibility of injury, of which she said she should have been warned, was 'very slight'. |
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