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Later look at getting into the car when you know the

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Later look at getting into the car when you know the driver is drunk or drug affected. o (vi) Special skills If defendant claims to have skills, Reasonable person = person with those special skills (e.g. engineer, doctor- reasonable experienced doctor). Statutory provision. Take into account the skill they claim to have. Don’t have to say it to profess to have the skill. o s 58(a) Wrongs Act 1958 (Vic) o 58. Standard of care to be expected of persons holding out as possessing a particular skill In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to— (a) What could reasonably be expected of a person possessing that skill; and If plaintiff knows defendant doesn’t have skills, Reasonable person = person without those skills (e.g. Philips v William Whitely Ltd ) Torts Lecture Notes 10
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o Philips v William Whiteley Ltd [1938] : D (a jeweler), employed a man to pierce P’s ears, two weeks later she developed an infection that caused an abscess on her neck that required surgical draining. If she went to a doctor they would have boiled the instrument. P said D should have boiled the instrument but at the time no jewelers boiled their instruments. Held : A jeweler is not bound to take the same precautions as a surgeon would take. If P wanted the reasonable care of a doctor she should have gone to a doctor, D had taken all reasonable precautions. P was unable to prove that the operation was negligently performed, and that the abscess which formed in her neck was due to the negligence. P lost. o What if P doesn’t know D has a special skill but they don’t say that, what standard of care do they owe? Unsure. But cannot stand down e.g. if a doctor helps but hasn’t said they’re a doctor, still judged as a reasonable experienced doctor. o Unless you cause an injury you don’t have to help. But once one starts helping they can be held liable. o s 58(b) Wrongs Act 1958 (Vic) o 58. Standard of care to be expected of persons holding out as possessing a particular skill In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to— (b) The relevant circumstances as at the date of the alleged negligence and not a later date. Cannot use hindsight. CL standard of care based on knowledge at that time, not knowledge later. Roe v Minister of Health [1954] o Resources – actual resources of def not (usually) relevant – PQ v Aust Red Cross ( but see Goldman v Hargrave ) o (vii) At what time should the standard be determined?
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