Section 5I of the Civil Liability Act 2002 (NSW) applies where the risk that materialised pre-dated and was neither created nor increased by the defendant's negligence, even though the defendant's negligence was a 'but for' cause of the plaintiff's exposure to the risk. The 'reasonable care and skill' in s 5I(2) is not necessarily confined to that of the defendant. Where a negligent failure to diagnose does not worsen the patient's condition or increase surgical risks, the defendant is not liable for harm from intra-operative complications during subsequent treatment. The duty in connection with diagnosis is not analogous to the duty to warn and should not be expanded by reference to the patient's right to choose.
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