Element 3 not affected wrongs act s 54 2 sub section

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In the case of obvious risks burden of proof reversed, being on the plaintiff that is. Element 3: Not affected. Wrongs Act , s 54 (2) – Sub-section (1) does not apply to: a proceeding relating to the provision of, or the failure to provide, a professional service or health service; or a proceeding in respect of risks associated with work done by one person for another Why? The thought is that these are cases where D has superior knowledge to the P. What obvious to theses D’s may not be obvious to P’s. 37
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What? S54(1) is ignored in the case of professionals, health care services and employees/contractors. What counts as an obvious risk ?. Wrongs Act , s 53 (1) For the purposes of s 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Reasonable person test. Objective test. What would a reasonable person in P’s position have done?. Wrongs Act , s 53 (2) Obvious risks include risks that are patent or a matter of common knowledge. Includes denotes not limited. Wrongs Act , s 53 (3) A risk can be obvious even if it has a low probability of occurring. EG: Russian roulette, low risk but obvious. Wrongs Act , s 53 (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. Physically observable EG: Sex with HIV infected person, not physically observable. Prominent and conspicuous EG: Maybe submerged Rootes v Shelton case. Wrongs Act , s 53 (5) A risk from a thing (including a living thing) is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk EG: Risk of falling from a chairlift, risk is due to failure by operator to maintain chairlift. That sort of risk is not obvious, unless there is an obvious risk that the operator would not maintain the chairlift properly. 38
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Inherent Risks An inherent risk may or may not be obvious. Wrongs Act , s 55 – Factual causation cannot be established (or hard to) D is not liable for harm suffered as a result of the materialisation of an inherent risk An inherent risk = a risk that cannot be avoided by the exercise of reasonable care s 55 doesn’t exclude liability in connection with a duty to warn of a risk WA S55(3) – Exception to s55 This section does not operate to exclude liability in connection with a duty to warn of risk. D may have a duty to warn P of a risk, they can be liable if they fail to warn. EG: Rootes v Shelton – Even if D was driving the boat negligently, any negligent will not be regarded as a cause, because it is regarded as a risk that the D could not avoid. The D may have a duty to warn the P. One could be liable to warn of the risk.
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