Commercial Law Assignment - Nayan.docx - Question No 01...

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Question No. 01
Issues: In this case, the main issues around the DePuy ASR hip system were brought to light in May 2011 when ABC current affairs program ‘Four Corners’ broadcast a program detailing allegations regarding a relatively new type of ASR hip replacement surgery used in Australia. There have many individuals interviewed by Four Corners ‘The Walking Wounded’ had received ASR, or Articular Surface Replacement (ASR), hips manufactured by DePuy Orthopaedics, part of the Johnson & Johnson company. The high revision rates of these devices, both in Australia and worldwide, eventually prompted a voluntary recall by DePuy. Approximately 5,500 people in Australia, and 93,000 worldwide, were the recipients of these metal-on-metal devices. During the course of the program, Four Corners interviewed numerous individuals who had received metal-on-metal devices, including interviews with those who had subsequently had revision surgery. Many interviewed reported systemic health problems extending beyond initial complications with the device. This included: vision impairment, tinnitus and heart palpitations. Professor Ross Crawford, an orthopedic surgeon who has been involved with providing revision surgery theorized these complications are due to cobalt toxicity. Rules of law: Civil Liability Act: The parliaments in Australia have rolled out improvements to the law of carelessness with the Civil Liability Acts. Where there is a danger of individual harm the Act has supplanted the sensible individual test with a three-stage test. In spite of the fact that the Act still uses the words sensible and foresee ability (Harris, 2013). According to Section 5B (1): A person is not negligent in failing to take precautions against a risk of harm unless: The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and The risk was not insignificant, and In the circumstances, a reasonable person in the person’s position would have taken those precautions. According to Section 5B (2) : In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following: The probability that the harm would occur if care were not taken, The likely seriousness of the harm, The burden of taking precautions to avoid the risk of harm,
The social utility of the activity that creates the risk of harm.

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