Where a prophylactic treatment would reduce the absolute risk of harm by less than 1%, the failure to administer that treatment is unlikely to satisfy the 'but for' test of factual causation under s 5D(1)(a) of the Civil Liability Act 2002 (NSW), even where the treatment would reduce the relative risk by a significant percentage. The causation question must be framed by reference to the ultimate harm suffered (here, FVS in the foetus), not an intermediate step (chickenpox in the mother). A party seeking to rely on s 5D(2) must raise it at trial; failure to do so will preclude reliance on appeal.
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