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O in s592 wrongs act it says that s591 will not apply

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o In s.59(2) Wrongs Act it says that s.59(1) will not apply where the court holds the view that the professional opinion or practice is unreasonable. The legislation does not tell us what to look for to determine what is reasonable, and there are no cases on it. It seems likely that the court would work out what is required of the reasonable professional in the situation using the negligence calculus. If the professional opinion sought to be relied upon falls far short of this, the opinion may be held unreasonable. But this is only a guess. o This section s.59 does not apply where the negligent act is a failure to give a warning. Under s.50 Wrongs Act when a defendant owes a duty to give a warning, the defendant must take reasonable care in giving the warning. This standard does not change for professionals. The normal negligence calculus factors apply here- i.e. what degree of harm would result if you gave no warning. Also, it is not particularly onerous to give a warning, which points to a reasonable person giving one. If the defendant was not aware of the danger, they will not be under a duty to warn the
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plaintiff. You must look to what a reasonable person would do in the defendant’s position. In terms of medical warnings, there are a number of factors the court takes into account (F v R- P went to have tubes tied, wasn’t told of 1% risk of it not working, and became pregnant. Sued because not given warning; court considered what information a reasonable doctor would disclose, with reference to the following factors): The nature of the matter to be disclosed Its complexity: meaning there is more to disclose if it is a complex procedure The nature of the treatment The degree of seriousness: the more serious the procedure, the more needs to be explained The desire of the patient for information: the greater the desire, the more needs to be explained Temperament and health of the patient: if a patient is fragile and upset, that pushes against disclosing too much for them to handle The general surrounding circumstances: is t an emergency situation where it is difficult to divulge information, or is it a clinical situation? The court has found a number of things that are important in a doctor providing information to a patient (Rogers v Whittaker- plaintiff blind in one eye, went to get it fixed and a warning about material risks inherent in the treatments. A risk will be material in 2 circumstances- first, if a reasonable person in the plaintiff’s position is likely to attach significance to it. Second, if the doctor should reasonably be aware that the particular patient, if warned of the risk, will be likely to attach significance to it. The meaning of ‘attach significance’ is no made clear in the judgement, but it likely means they would have considered it a big deal- but not necessarily that they wouldn’t have gone through with the operation. Chief Justice King said: “The ultimate question, however, is not whether the
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o In s592 Wrongs Act it says that s591 will not apply where...

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