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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10587
Experience:  Barrister 17 years experience
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Can an ongoing case use a change in the law within their case?

Customer Question

Can an ongoing case use a change in the law within their case? thx
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.

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.

Expert:  Buachaill replied 1 year ago.

2. Please Rate the answer as unless you Rate the answer your Expert will receive no payment for answering your question.

Customer: replied 1 year ago.
The ruling is based on the Montgomery V Lanarkshire Health board, where the subject of consent, re medical procedures including births,the possible outcome of the procedure must be relayed to the patient and an alternative given if possible.
Expert:  Buachaill replied 1 year ago.

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.

Buachaill and other Law Specialists are ready to help you
Customer: replied 1 year ago.
how do I now include this in my original case,?
Expert:  Buachaill replied 1 year ago.

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.

Customer: replied 1 year ago.
If only it was that easy, my legal team have walked away and I can't find another solicitor, it's as though they have all been scared off my case, and no one will help, this is why I am asking you, as I have no one else.
Expert:  Buachaill replied 1 year ago.

5. I am sorry to hear that. Get a book called "Pleading without Tears" by William Rose. It will help you.

Customer: replied 1 year ago.
thank you, ***** *****
Expert:  Buachaill replied 1 year ago.

6. Best of luck with it all.

Customer: replied 1 year ago.
Hi is there a possibility that they could time barr this argument, although the ruling is new, and now allows other areas to be questioned?
Expert:  Buachaill replied 1 year ago.

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.

Customer: replied 1 year ago.
Hi, if the case of consent can be proved, is there still a need to prove causation in a case.
Customer: replied 1 year ago.
or is the fact that it has been met in Public Policy, re Chester v Afshar 2004
Expert:  Buachaill replied 1 year ago.

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.

Expert:  Buachaill replied 1 year ago.

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.

Customer: replied 1 year ago.
does the Montgomery ruling have any affect on the causation side,or is proving Montgomery enough, when the risks where not explained?
Expert:  Buachaill replied 11 months ago.

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.

Customer: replied 11 months ago.
they can't use time barring as a reason to not allow a minute of amendment??
Expert:  Buachaill replied 11 months ago.

11. The Defendant can certainly raise the issue. However, they need to show time ran against you in order that they can succeed.

Customer: replied 11 months ago.
Can you tell me what you mean time ran against me, my proof is 6 months away?
Expert:  Buachaill replied 11 months ago.

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.