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There are no cases in this area and it is really a

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There are no cases in this area, and it is really a policy issue- should the risk belong to everyone in the society, or the disabled person?
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- Mental Incapacity/ Psychiatric Illness: A mentally ill person will, for the tort of negligence, be held to the standard expected of a reasonable mentally well person (Adamson v Motor Vehicle Insurance Trust- Schizophrenic stole a car and was driving to ‘escape’ a paranoid delusion, hit a pedestrian; held to normal standar d). The judgment indicated that the individual, not the community, should bare the risk. However, it was decided in the 1950s and may be decided differently today. - Inexperienc e: The experience (or inexperience) of a defendant is generally not taken into account in determining the standard of care. However, there is one exception: If the plaintiff knew of the lack of experience, and subjected himself to it (Cook v Cook- learner driver, didn’t want to drive but P told her to; held to the standard of an unqualified and inexperienced drive r). This is particularly true of student/teacher situations, because the inexperience of the defendant is the very heart of the relationship. The defendant can be (and was) held to breach the standard of the inexperienced driver. However, the inexperienced person will be held to the normal standard as to any other plaintiff. * Brennan: When she accepted carriage in the vehicle, that the driver was inexperienced; the standard of care required to discharge the driver’s duty in those circumstances is the standard of an inexperienced driver of ordinary prudence. - Under the influence of drugs or alcohol: s.14 (G) Wrongs Act: In a claim for damages in respect of personal injury or death, in assessing the duty of care the court must consider whether the substance was consumed voluntarily, the level of intoxication, and whether the plaintiff was engaged in illegal activity. But the court prefers to discuss this in the context of defences.
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- Special Skills: The standard of care can be raised for a person with special skills. The relevant standard will be that of a reasonable person with those skills- i.e. a reasonably experienced dentist. Even if there are people in the community more experienced, you will only be held to the standard of someone in your actual position (Phillips v Williams Whitely- person worked in a jewellery dept of a store, did ear piercing, failed to sterilise; held to standard of a reasonable ear-piercer, not a docto r). A person in training will be held to the standard of a qualified person. Conversely, if the defendant has no special skills, they will held to the standard of a normal layperson, even if there are people in the community who possess those skills. - Defendant holds himself out as having special skills: Under s.58 Wrongs Act a person who holds himself out as having special skills will be held to the standard of a reasonable person who actually has those skills.
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