1. Dear *****l, Yes, a case that is ongoing can use a change in the law in their case, so long as it is another legal decision which altered the law. Changes in statute law are only able to be used, if they changed the law, retrospectively and for all time. Accordingly, if in your medical negligence case, there has been another case decided, in the High Court, for example, then you will be able to use this precedent in your case as well. However, if the change was in statue law, it has to be expressed to affect all cases, past and future to be able to use if. If you want to provide further details as to what exactly it is that has changed in the law, I will advise further.
2. Please Rate the answer as unless you Rate the answer your Expert will receive no payment for answering your question.
3. Dear Carroll, Yes, the ruling in the previous case can now be used as precedent in your case and what it held - in terms of consent to treatment and the giving of options - is now good law and can be applied in the medical negligence case you are involved in.
4. If you wish, you can seek to amend your Statement of your case in order to include it. However, you should get legal advise whether your original Statement of your case is sufficient to include this point within their ambit. Medical negligence litigation is quite technical, so I would recommend some professional assistance. It may be possible to simply cite the authority in court and get what you want. However, your Statement of your case has to be wide enough to encompass it.
5. I am sorry to hear that. Get a book called "Pleading without Tears" by William Rose. It will help you.
6. Best of luck with it all.
7. The actual precedent would never be time barred, as it represents the law today. However, you will need to seek to amend your pleadings. There you will be hit with an argument about issues being time barred, but the court never prevents changes in the law being pleaded, despite objections to the contrary.
8. Yes, in every case, causation needs to be proved. Causation is merely a fancy way of saying you need to prove your case. However, you must always show, in every case, even if consent is proved, that the harm resulted from the factor you have complained of.
9. For example, if the harm resulted from something other than the dangers which were warned against causation would not be proved. You should also be aware that Chester v. Afshar represents the high point of the failure to warn. Failure to warn results in liability, but causation must be proved even if public policy means the failure to warn gives rise to liability.
10. If you read Montgomery, it specifically states that it does not affect the need to prove causation or to prove your case. However, in point of fact, once you prove that the risks were not warned about, then the onus shifts to the Defendant doctor and hospital to prove that the risks were in fact warned about. So, whilst causation has not been affected by Montgomery, in practice it has made the proving of the case much easier.
11. The Defendant can certainly raise the issue. However, they need to show time ran against you in order that they can succeed.
12. The period of limitation went bye without you doing anything after you found out about your cause of action. Please file a fresh question for any further questions in relation to this issue. You can mark the question for my attention.