Case Study of Negligence

10 October 2016

Duty of care Issue: Does defendant (David or the Bright Smiles Dental Surgery) owned duty of care to plaintiff (Tony)? Rules: * The neighbour principle: In Donoghue v Stevenson1, Lord Atkin concluded that we all owe a duty of care to our “neighbors”, meaning those persons who we should have in mind when we are contemplating actions that we take as we go about our business and private lives. * Neighbour Defined: “My neighbors are persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called in question”. Foreseeability: For an action in negligence to succeed, it must be foreseeable that the act (or omission) of the defendant could cause harm to the plaintiff. The test is one of “reasonable foreseeability”, which is an “objective”. * Proximity: There must be some relationship between the parties for the duty to exist. In other words, proximity that requires care to be taken must exist. Application: As Tony was having the surgery in the Bright Smiles Dental Surgery, therefore, whatever will happen based on the surgery, it should be the duty of care of the Bright Smiles Dental Surgery.

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Be more specific, David is employed there as a full-time dentist and he was the one who attached the artificial teeth by strong dental glue instead of the way which recommended by leading dentists. If David did not change the way of attach the teeth, Tony would never get a severe infection caused by the method of fitting of the artificial teeth. Conclusion Applying the neighbour principle and reasonable foreseeability, David or the Bright Smiles Dental Surgery do owed the duty of care of Tony.

And it is foreseeable that the act of the defendant, which may be David or the Bright Smiles Dental Surgery, could cause harm to the plaintiff, which is Tony. Breaching that duty of care Issue: Does the defendant (David or the Bright Smiles Dental Surgery) breach his duty of care? Rule: * Reasonable person-Standard of care: the standard person would have foreseen harm in the circumstances and would have taken steps to prevent it. The defendant will be in breach of their duty if reasonable steps are not taken to prevent foreseeable harm.

The test is an objective one –what a reasonable person thinks. * Weighting test: 1. The likelihood of injury: If the risk of injury is minimal, there will be no breach of the duty of care. 2. Gravity of injury if occurring: The seriousness of any resulting injury 3. Steps needed to remove the risk: The steps required to eliminate the risk 4. Benefit (social utility) of the defendant’s conduct: The social utility of the defendant’s conduct must be weighed against the gravity of the risk. Application

As David’s conduct is measured against the reasonable person who should told Tony there was a risk to use the dental glue . It is possible that David get hurt from the dental glue and the surgery. The gravity of injury is quite serious as his teeth fell out of the new desk while he was on TV presenting the evening news. After he got home his whole mouth was aching and he complained of severe pain in the gap left by extraction. For the steps to eliminate the risk, David should foresee the harm which caused by the dental glue and the possible consequence might cause.

Last but not least, there is no benefit (social utility) of the defendant’s conduct. In fact, David could transfer Tony to his other workmate if he is not familiar with the way which suggested by the leading dentist. However, David chose to do it by using the strong glue which causes all the damage. Conclusion Hence, David did breach the duty of care of Tony as he was the reasonable person who should foresee the damage and it is easy to eliminate the damage. LOSS OR DAMAGE FOLLOING FROM BREACH OF DUTY Issue

Was Plaintiff (Tony)’s damage the direct result of defendant (David or the Bright Smiles Dental Surgery)’ breach? Rules * Causation (but for test): But for the conduct of defendant, would the damage have been suffered? The test was explained well by Lord Denning in Cork v. Kirby Maclean Ltd (1952) 2 ALL ER 402 at 407 , as follows: If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same fault or no fault, then the fault is not a cause of the damage.

If there is more than one cause of the damage the “but for” test will have limited application. In such case the courts will use a “balance of probabilities’ test in determining causation. * Remoteness of damage (reasonable foreseeable test, the test is objective) would a reasonable person have foreseen the damage? * Assessment of damages: the aim of damages is to compensate the plaintiff for the loss or damage that flowed from the defendant’s breach of duty of care owed.

Such loss or damages is quantified by the judge hearing the case to compensate the plaintiff not only for their actual loss but for their future potential loss as well. Application After diagnosing of Tony’s mouth, it was certified that there was a severe infection in Tony’s gum that was shown in tests to be caused by the method of fitting of the artificial teeth. In fact, as David decided to use the dental glue, instead of the traditional method that was recommended by the leading dentist.

And David, who is the reasonable person, owned the duty of care of Tony. According to the fact, Tony not only suffers variety of physical damage but also physiological damage. He became depressed due to his appearance and loss of work, and is seeing a counsellor for therapy who suggested him to go for a holiday. Therefore, he had suffered the medical and dental expense total $ 14, 000, loss of wages $ 12,000, and counselling$1,800. And the cost of trip is $ 5,000. Conclusion: Therefore, Tony’s damage directly resulted from David’ breach of duty of care.

If He in civil proceedings is successful, a remedy will be rewarded as compensation of dental expense $ 14, 000, loss of wages $ 12,000, and counselling$1,800. And the cost of trip is $ 5,000. What is more, he could DEFENCES TO AN ACTION IN NEGLIGENCE Issue Are there any defences available to defendant (David or the Bright Smiles Dental Surgery)? Rules Defences to an action in negligence: * Contributory negligence: It occurs where the plaintiff can be held partly to blame for the loss sustained as result of a failure to take reasonable care against a foreseeable risk of injury.

This rule has been modified by statue in Section 26 of the Wrong Act 1958 3(Vic. ): Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damage recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. Voluntary assumption of risk: if a person assumes the risk of injury voluntarily, this is complete defence to a claim of negligence. It is difficult defence to rise as it must be proved that the plaintiff was aware of the risk and accepted that risk freely. Application After checking Tony’s x-rays, David extracted the teeth and put the artificial teeth in place. However, David was not familiar with the accepted method of attaching artificial teeth recommended by leading dentists and instead attached them by way of strong dental glue.

However, it was David determined to use the strong dental glue instead of the method recommended by the leading dentist. On the other side, Tony should figure out that his method is different from the one which recommended by the leading dentist, and he should do some more consulting of the new method which was going to be used in his surgery. Conclusion Therefore, Tony did contribute to his damage as he did not check his new method which causes the inflection and further damage.

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