Held hol breach chances are the same but consequences

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HELD: HOL breach. Chances are the same but consequences are different . Potential seriousness of ham must be considered – injury much more serious for one eyed guy. Need to look at plaintiff’s characteristics.
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3. Burden of Taking Precautions to Avoid Risk of Harm. - How expensive or inconvenient would it be to take precautions? - It is up to the plaintiff to tell the court what precautions could have been taken. Section 49(c): constitute admission of liability. Wyong Shire Council (HC) FACTS: P was waterskiing in a lake run by the council. Council had dredged a channel deep enough for skiers to ski and had put up signs that could be interpreted in two ways. P misinterpreted the signs and became quadriplegic. HELD: Negligent. Reasonably foreseeable, possible, very serious etc. How hard would it be to change the signs?? NOT VERY HARD OR EXPENSIVE. Should have changed the signs. Caledonian Collieries Ltd v Speirs FACTS: P’s husband was killed at a level crossing. Something happened to the train and it went backwards and failed to trigger boom gates. The only things to do would be to put in catchpoints which would derail the train possibly causing more injury. Catchpoints were not expensive . HELD: Breach It was a drastic measure but balanced against the high likelihood of serious harm if it went backwards a reasonable person would still do something . Putting catchpoints in the next day doesn’t prove breach put proves the Watt and Hertfordshire County Council FACTS: A woman was trapped under a car after an accident so called the fire authority who had the equipment needed to cut her out. The truck that was needed to transport the equipment was out of the station. They chose to take another truck and tied the equipment down with a man holding it. A fire fighter was crushed and sued his boss HELD : No breach. They were going to an emergency – the woman would have died. Denning: Saving life justifies risk.
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COMMON PRACTICE - Courts may consider common practice but it does not set the standard of care because the common practice might be negligent. Section 59 (1): A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that is supported by substantial professional opinion ; (2) Cannot be relied upon if court determines that the opinion is unreasonable ; (3) The fact that there are other opinions doesn’t matter ; (4) Only has to be widely accepted – not universally ; (5) Courts must specify their reasoning in writing if they find the opinion unreasonable. - Non compliance with an Act or standards does not necessarily mean there is negligence. ( Tucker v McCann ) Warnings Section 50: A person who owes a duty to warn must take reasonable care in giving that warning. Rogers v Whitaker Breach if Dr. failed to warn patient of material risk in treatment: Material risk: a) A reasonable person in the patient’s position , if warned of the risk, would be likely to attach significance to it; OR b) If the Dr. is or should be reasonably aware that the particular patient , if warned of
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