(c) Negligence Calculus Professional negligence – 1958: Wrongs Act s 57 Professional individual practising a profession. – s 59 D not liable if in widely accepted manner by professional opinion’ – ‘peer (unless court finds this opinion is unreasonable). Reintroduces test for all professionals (Bolam ‘Bolam’ v Friern Hospital Management Committee). In medical context, duty of care in respect of diagnosis/treatment. s 60 s 59 doesn’t apply when professional gives/omits advice. – Information provided by reasonable doctor depends on (F v R): Nature of matter discussed; Nature of treatment; Patient’s desire for info, temperament and health; and General circumstances (e.g. emergency). Doctors have general duty to disclose risks without being asked. Risk is material if reasonable patient would attach significance to it, or doctor was aware/should be aware that patient attached importance to risk (Rogers v Whitaker). Test for causation in to warn’ cases: ‘failure D only liable if failure to warn of patient risk caused P to undergo procedure. Subjective, should be determined in light of all circumstances (Wrongs s 51(3); Act Rosenberg v Percival). Tribunal of fact can reject P’s evidence if credibility issues. If no direct evidence, can infer from objective facts (Rosenberg v Percival). Note: Limited appellate review on such a decision. Week 6 Causation and Remoteness (Vic) s 51 Wrongs Act 1958 Two elements to establish causation: Factual causation ((1)(a), (2) & (3)). Legal causation ((1)(b), (4)).
(c) Negligence Calculus – Professional negligence Wrongs Act 1958: s 57 – Professional individual practising a profession. s 59 – D not liable if in widely accepted manner by ‘peer professional opinion’ (unless court finds this opinion is unreasonable). Reintroduces ‘Bolam’ test for all professionals (Bolam v Friern Hospital Management Committee). In medical context, duty of care in respect of diagnosis/treatment. s 60 – s 59 doesn’t apply when professional gives/omits advice. Information provided by reasonable doctor depends on (F v R): Nature of matter discussed; Nature of treatment; Patient’s desire for info, temperament and health; and General circumstances (e.g. emergency). Doctors have general duty to disclose risks without being asked. Risk is material if reasonable patient would attach significance to it, or doctor was aware/should be aware that patient attached importance to risk (Rogers v Whitaker). Test for causation in ‘failure to warn’ cases: D only liable if failure to warn of patient risk caused P to undergo procedure. Subjective, should be determined in light of all circumstances (Wrongs Act s 51(3); Rosenberg v Percival). Tribunal of fact can reject P’s evidence if credibility issues. If no direct evidence, can infer from objective facts (Rosenberg v Percival). Note: Limited appellate review on such a decision. Week 6 Causation and Remoteness Wrongs Act 1958 (Vic) s 51 Two elements to establish causation: Factual causation ((1)(a), (2) & (3)). Legal causation ((1)(b), (4)).
Tort-Raw-Notes.docx