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O this section s59 does not apply where the negligent

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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 defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.” This was affirmed in Rogers v Whitaker where the court confirmed that it would be the body that decided whether the doctor had breached the standard of care relating to the disclosure of risk, on all the evidence before it.
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