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Negligent dissents dixon doesnt think 240 there

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to say I acted the way everyone else did. Negligent. Dissents: Dixon: doesn’t think 240 there should be dead man’s handle. Must show it is more than a precaution. A precaution that’s reasonable to take. Expert evidence- each party will have their own expert evidence, court must make a decision from that. What does that mean for medical negligence? How does court decide standard of care for a doctor? o Thompson v Smith Ship Repairers ) / complying with an Act/ statutory standards -> Doesn’t necessarily mean not negligent (i.e. not conclusive) Defendant must keep up to date – o Stokes v Guest : P’s husband died of scrotum cancer from his work. P’s husband worked with mineral oils known to cause cancer. Employer knew that the mineral oils employees were working with could cause cancer but didn’t take any precautions to prevent it. D had greater knowledge of the average person than should take greater than average precaution. (Foreseeable) Torts Lecture Notes 14
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o H v Royal Hospital: (Hemophiliac had 2 blood transfusions, hospital didn’t screen blood properly even though aids discovered already but 2 nd transfusion. P got aids, hospital was negligent but didn’t know from which transfusion, couldn’t prove causation). Medicine is very fast moving, expected to know, and must keep up to date. o Bolam v Friern Hospital Management Committee [1957] (referred to CB 256 et seq): No longer will the doctor be the final arbiter. o F v R (1983) (referred to CB 257)(SA SC Case): P who wanted to be steralised, so she went to D who was an experienced gynecologist. D advised her that the best way was to tie her tubes. 0.5-1% chance it wouldn’t work. This doctor had done surgery more than 600 times and never had a failure. Hers failed and she got pregnant. She sued doctor for negligence. Dr was not negligent in doing the surgery. Negligent because the doctor didn’t warn her there could be failure. At trial P won and was given damages for pain and suffering regarding the pregnancy and cost of caesarian. D appealed. Was there a breach in him not telling her? On these facts there was no breach, as there was no alternative, this was the only way to do it for woman. It was only a small risk and he believed he was acting in P’s best interest. Every doctor in the field did the same thing, didn’t mention failure and the woman never asked. King sets out issues re whether a doctor should warn P or not, 2 competing values and sometimes in conflict: 1. duty of doctor to act in what they think are the patient’s best interest. 2. The right of every patient to control their own life and need full information to do that. Also said that although ev of common practice in med profession is important, it is not conclusive! Very different to Bolam test. Not conclusive because sometimes professions can adopt unreasonable practices. He did a nice list of factors judges should think about where there has been a breach in circumstances (whether doctor should tell p). The nature of matters to be disclosed (consequences, how
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