S 60 re information cases duty to warn of risk cases

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s 60 re information cases – duty to warn of risk cases- o Victoria has not adopted Ipp recommendations
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o instead s 60 says peer professional opinion is NOT the standard where issue is negligence IS THE warning or failure warn of risk or other matter in a professional service case o Therefore does not apply to doctors and still use: o instead still use common law from F v R and Rogers v Whitaker to determine if been breach Vic also did not adopt Ipp Report recommendation that there be no obligation to warn of obvious risks -> so def probably still needs to warn plaintiff of obvious risks Further Considerations: There are some other factors the court will look at that do not come from s. 48(2) Wrongs Act: - Breach of other legislation: Will a breach of legislation indicate in itself that there has been a breach of duty? Will someone breaking a law automatically breach their duty? No- contravention of a legislative requirement is not a definitive breach of duty, but the court will take it into account (Tucker v McCann- Speeding car went through intersection and hit bike, was breaching speed legislation; held that failure to adhere to legislative requirements was not decisive. You may have to swerve and cross the double lines to avoid a child- this dos not automatically breach your duty of care to other road users- what would a reasonable person have done ?). The assessment of Res Ipsa Loquitur- the thing speaks for itself In some situations, the plaintiff will not be able to point to a specific act by virtue of which the defendant has breached their duty to the plaintiff, and there is no way to find out. However, the very fact of the incident strongly suggests that the defendant was negligent. IF a plaintiff adduces specific evidence of an act of negligence on the part of the defendant and such specific evidence is not sufficient to satisfy the tribunal of fact of the defendant’s negligence the plaintiff may still rely on RIL and inferences to be drawn from the general nature of the accident.
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In Schellenberg v Tunnel Holdings P/L the High Court held that RIL is not a rule of law but a process of valid interential reasoning used in tort law. It was held that it only applies is cases where it is proven that an accident would not ordinarily occur without the negligence of the defendant. For the court to accept res ipsa loquitur, there are some preconditions that must be satisfied: - The cause of the occurrence in question must be unexplained: The whole point of this doctrine is to provide an avenue for people who cannot point to a specific act or omission of the defendant. If there is evidence of how the act happened, there is no need for the court to infer negligence. If the defendant can provide an explanation of how the act occurred, RIL will not apply. You will simply go through normal elements of breach.
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