O the section does not say what a significant number

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o The section does not say what a significant number of practitioners is, but s.59 (4) says that the opinion need not be universally accepted in order to be widely accepted. o A professional, for the purpose of this section, is a person who practices a profession (s.57 Wrongs Ac t). If we take this to mean someone of a ‘learned’ profession, it is limited- but this seems to be the intention. We could argue that a professional is anyone who follows an occupation as a means of livelihood, in the sense that they are experienced and a long-term member of that profession. If a person cannot rely on s.59 because they are not a ‘professional’, they can still argue peer practice under the common law as an element in the negligence calculus. This will be a weighty, but not conclusive, issue (Mercer v Commissioner of Road Transpor t- the peer practice itself
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may be negligent, or may be self-serving, or may not keep pace with current developments, and so will not be conclusiv e). * In matters of special or technical knowledge the course which is commonly adopted forms prima facie the measure of care and skill required. Bolam Principal: Rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time a sproper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes a duty of care; but the standard of care is a different matter. (Followed in England not only in medical malpractice cases) NOT ALWAYS APPLIED IN AUS: in Fv R: (lady gets pregnant after doctor fails to disclose failure rate of tubal ligation): King CJ held that the ultimate question is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession of group in the community. Rogers v Whitaker The standard of reasonable care and skill is that of the ordinary skilled person exercising and professing to have a special skill Breach if Dr failed to warn patient of a material risk in treatment -> Is material risk if in the circumstances of a case: (a.) A reasonable person in patient’s position, if warned of risk, would be likely to attach significance to it; OR (b.) If the Dr is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it. o In s.59(2) Wrongs Act it says that s.59(1) will not apply where the court holds the view that the professional opinion or practice is unreasonable. The legislation does not tell us what to look for to determine what is reasonable, and there are no cases on it. It seems likely that the court would work out what is required of the reasonable professional in the situation using the negligence calculus. If the professional opinion sought to be relied upon falls far short of this, the opinion may be held unreasonable. But this is only a guess.
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