Clear that she was seriously injured possibly dying

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Facts: Woman trapped under a vehicle. Clear that she was seriously injured possibly dying. Jack was taken by the fire truck on vehicle not designed to take it. The jack dislodged and hit P. The HC said if it was a commercial activity being undertaken then a breach would have occurred. However in this case a woman life was at stake and a reas. person would take the risk. Scope: The SoC is lowered in certain circumstances at certain times. The risk taken must be commensurate with goal. Factors outside WA 42(2): (v) Common Practice PPO ( peer professional opinion) is given weight by the courts. The mere fact that the D conformed to a common practice is not enough to show that D was not negligent – Mercer . The mere fact that D departed form a common practice is also not enough to show negligence. EG: In Philips common practice was used to show that the jeweler was not negligent. Common practice: general Wrongs Act, s 59 (1) – Deals with professionals only (defining a professional is difficult and whether trades are included is an issue) A professional is not negligent in providing a professional service if it is established that s/he acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice 15
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Wrongs Act, s 59 (3) The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section Wrongs Act, s 59 (4) PPO does not have to be universally accepted. Wrongs Act, s 60 s 59 does not apply to a liability arising in connection with the giving of (or the failure to give) a warning or other information in respect of a risk or other matter to a person if the giving of the warning or information is associated with the provision by a professional of a professional service Medical professionals: Need to distinguish between: diagnosis and treatment; and the provision of advice or information Wrongs Act, s 50 A defendant who owes a duty of care to the plaintiff to give a warning or other information to the plaintiff in respect of a risk or other matter, satisfies that duty of care if the defendant takes reasonable care in giving that warning or other information Relevance of PPO in provision of information or advice ( not covered in s60) : F v R, per King CJ ( adopted by the HC in Rogers v Whitaker) PPO did not apply Up to the court to decide whether the legal standard was met. With regard to the provision of medical advice and information, the ultimate question is not whether the defendant complied with the practices of her profession, but whether she conformed to the standard of care demanded by the law What information a reasonable doctor would disclose depends upon: 1. If details could not be understood by a lay person then it does not need to be disclosed.
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