SESSION 10 - TORT OF NEGLIGENCE.pdf

38 held there was a duty of care owed by the hospital

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38
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Held . There was a duty of care owed by the hospital to the plaintiff and that this duty was breached by the attending doctor. But the doctor’s negligence did not cause the plaintiff’s death. Even if the correct treatment had been given, death would have taken place anyway since the effects of arsenic poisoning is irreversible. 39
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Remoteness means that the injury or damage must have been “closely connected” to the defendant’s breach of duty. This refers to: Injury/Damage which is “reasonably foreseeable” by the defendant that would result in loss for the plaintiff. See The Wagon Mound No. 1. 40
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Facts . A ship was taking on fuel and some of this fuel was negligently discharged by the defendant into Sydney harbour. The oil spread to the next wharf owned by the plaintiff where welding was taking place. The workers stopped welding. The workers resumed their welding after the plaintiff obtained expert advice that the fuel oil would not burn in water. A massive fire ignited from the welding sparks and caused extensive damage to the plaintiff’s wharf. Held . It was unforeseeable that the fuel oil would burn in water. The damage suffered by the plaintiff was not reasonably foreseeable and the plaintiff’s claim failed. (“reasonable foreseeability” test). 41
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A defendant would be liable for the full extent of injuries sustained by the plaintiff despite the fact that the plaintiff’s injuries were aggravated by his particular susceptibility to that kind of injury, even though a normal person may have suffered a smaller injury or escaped injury altogether. See Smith v. Leech Brain. 42
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Facts . Plaintiff got burnt on his lip while working for defendant. Unfortunately the burn was a “promoting agent” for a predisposition to cancer he had and he died 3 years later. That there was negligence was not disputed. What was challenged was whether or not the death was too remote. Held : The defendant was liable. “If a man is negligently run over... it is no answer to the sufferer’s claim for damages that he would have suffered less injury... if he had not had an unusually thin skull or an unusually weak heart” 43
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Law of Torts - 1 10.1 Introduction to Torts 10.2 Tort of Negligence Classify the different types of torts Explain the elements of the tort of negligence Apply the neighbour principle to determine the duty of care Apply the factors affecting the standard of care Explain the role of causation and remoteness in resulting damage 44
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NEGLIGENCE DUTY OF CARE BREACH OF DUTY NEIGHBOUR PRINCIPLE SPANDECK’S TEST PROXIMITY “FACTUAL DETERMINATION” Reasonable foreseeable PUBLIC POLICY STANDARD OF CARE Injury Likelihood Seriousness Costs of Avoiding Risk CAUSATION REMOTENESS EGG-SHELL SKULL PRINCIPLE Skill Level RESULTING DAMAGE 10 45
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