However is there an exception for consensual

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However, is there an exception for consensual relationships. Standard of care – Learner Drivers Cook v Cook (1986) 68 ALR 353 (CB 268) FACTS: P knew D did not have a driver’s license, P insists that D drive the car. P smashes D’s car. D was driving dangerously. Normal standard: that of a careful and experienced driver Vis-à-vis their instructor, a learner driver owes a lesser standard of care (reasonable inexperienced driver) However, vis-à-vis third parties, the normal standard applies to learner drivers The reasoning is that an instructor chooses to train the driver. (vi) Special Skills – Higher standard of care. Those with special skills must meet the standard expected of a reasonable person with those skills If one represents oneself as having a certain skill set then they will be held to that standard. Wrongs Act s58 – Where a D holds themselves out to have a skill they will be taken to have that skills of reasonable person of that type. Philips v Williams Whiteley Ltd [1938] 1 All ER 566 (referred CB 272) FACTS: P went to jeweler to have ears pierced. The jeweler did not take the precautions necessary to stop an infection. Jeweler was not required to take the reasonable care of a doctor rather that of a reasonable jeweler. The skill level required is determined by: 12
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the claim of the D The actions/activities carried on ( someone performing surgery holds themselves out to be a surgeon) Time is relevant in that a reasonable person is not endowed with hind sight. (vii) At what time should the standard be determined? Roe v Minister of Health [1954] 2 QB 66 (CB 240) FACTS: Anesthetic caused P to become paralyzed. The glass viles of the anesthetic were put in phenol solution to stop them becoming infected. Phenol leaked through small cracks in the glass not visible to the human eye. P said a dye should have been placed in the phenol to show and contamination. Court said that no breach occurred because at the time it was not known that cracks so small would allow phenol to pass. (d) Foreseeable (what risks are reasonably foreseeable?) and not insignificant Wyong Shire Council v Shirt (1980) 54 ALJR 283 (CB 218) (e) Calculus of Standard Wrongs Act , s 48 (2) – Not exhaustive In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following: a) the probability that the harm would occur if care was not taken; b) the likely seriousness of the harm; c) the burden of taking precautions to avoid the risk of harm; and d) the social utility of the activity that creates the risk of harm In determining the standard a and b are compared taking into account 3 and 4. What does the ‘reasonable person’ do in light of a foreseeable and not insignificant risk? Wyong Shire Council v Shirt (1980) 54 ALJR 283 (CB 218) (i) Probability of Harm Bolton v Stone [1951] AC 850 (CB 224) Facts: P injured after being hit by a cricket ball which left the cricket ground. Court said that the risk was so negligible that a reas. person would not need to take precautions because the cost was prohibitive and the only other option was to shut down the ground which was also to serious a consequence.
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