Breach is whether the professional defendant acted

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breach is whether the professional defendant acted (when providing professional service) in a way widely accepted by a significant number of respected practitioners in the field as competent professional practice in the circumstances so uses peer professional opinion as the measure of SOC unless court decides peer professional opinion is ‘unreasonable’ (cf Ipp Report which used irrational). Profession decides if there’s a breach (Bolam test ). Exception is subsection 2. If opinion is unreasonable 59(2). Action against profession and they have hurt u while doing professional service, when it comes to breach decide whether they have breached doc, court hear from the professional if that’s the standard practice. Unless you decide that common practice is unreasonable (use common law) S 59 doesn’t apply if it’s a risk/warning case (duty to warn case). Info cases don’t fall in s 59 (only s60) ( Roger v Whitaker was an info case) Can have more than one professional opinion, doesn’t have to be universally accepted to be widely accepted. s 60 re information cases – duty to warn of risk cases- o Victoria has not adopted Ipp recommendations Torts Lecture Notes 15
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o instead s 60 says peer professional opinion is NOT the standard where issue is negligence re warning or failure warn of risk or other matter in a professional service case 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. Not relevant under vic standard. o Also refer to s 50 re: warning case. o Must decide was there reasonable care- go to common law to decide it. o Can be any one, not limited to professionals. Wrongs act S 50 Duty to warn of risk Reasonable care: A person (the defendant) who owes a duty of care to another person (the plaintiff) to give a warning or other information to the plaintiff in respect of a risk or other matter, satisfies that duty of care if the defendant takes reasonable care in giving that warning or other information. Fact not complying with Act/ standards – > doesn’t necessarily mean are negligent ( Tucker v McCann) o Tucker v McCann [1948] VLR 222 (CB 628): P was passenger on motorbike, d was a cardriver. P sued D saying they had been neg by breaching rd rules because they were going too fast. Courrts said d was not neg. just b/cos someone broke the law/stat, doesn’t mean they were neg. courts compelled not to find breach just bc public law has been breached. All facts of the case. Only evidence. If no explanation then can be neg but not nec neg just because they broke the law. Don’t have to go together. He was not acting unreasonably in his driving. Showing you obey the law doesn’t mean you are neg, relevant but not certain.
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