Case Study of Negligence

Duty of pull off go away Does suspect (David or the Bright Smiles alveolar Surgery) own calling of care to complainant (Tony)? Rules * The live principle In Donoghue v Stevenson1, Lord Atkin concluded that we all owe a profession of care to our neighbors, meaning those persons who we should mother in instinct when we are contemplating actions that we get a line as we go about our business and snobby lives. * Neighbour Defined My neighbors are persons who are so closely and this instant affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my judgment to the acts or omissions which are called in question. Foreseeability For an action in heedlessness to succeed, it mustiness be foreseeable that the act (or omission) of the defendant could take in prostitute to the plaintiff. The testify is one of reasonable foreseeability, which is an howevert. * Proximity There must be some relationship between the parties for the duty to exist. In opposite words, proximity that requires care to be taken must exist. Application As Tony was having the surgery in the Bright Smiles Dental Surgery, therefore, whatever allow fall out based on the surgery, it should be the duty of care of the Bright Smiles Dental Surgery.Be more specific, David is employed there as a full-time dentist and he was the one who attached the artificial odontiasis by fast(a) alveolar consonant chewing gum instead of the way which recommended by lead dentists. If David did non change the way of attach the teeth, Tony would never get a surd transmission caused by the order of fitting of the artificial teeth. ending Applying the neighbour principle and reasonable foreseeability, David or the Bright Smiles Dental Surgery do owed the duty of care of Tony.And it is foreseeable that the act of the defendant, which may be David or the Bright Smiles Dental Surgery, could cause wrong to the plaintiff, which is Tony. Bre suffer that duty of care Issue Does the defendant (David or the Bright Smiles Dental Surgery) breach his duty of care? Rule * Reasonable person-Standard of care the standard person would have foreseen harm in the circumstances and would have taken stairs to prevent it. The defendant will be in breach of their duty if reasonable steps are not taken to prevent foreseeable harm.The test is an objective one what a reasonable person thinks. * Weighting test 1. The likelihood of wounding If the happen of injury is minimal, there will be no breach of the duty of care. 2. Gravity of injury if occurring The seriousness of any resulting injury 3. Steps needed to remove the risk The steps required to cash in ones chips the risk 4. Benefit (social profit) of the defendants conduct The social utility of the defendants conduct must be weighed against the gravity of the risk. ApplicationAs Davids conduct is measured against the reasonable person who should told Tony there was a risk to use the dent al glue . It is possible that David get hurt from the dental glue and the surgery. The gravity of injury is quite serious as his teeth fell out of the unfermented desk while he was on TV presenting the evening news. after(prenominal) he got home his whole mouth was aching and he complained of severe pain in the gap left by extraction. For the steps to eliminate the risk, David should foresee the harm which caused by the dental glue and the possible consequence might cause.Last but not least, there is no benefit (social utility) of the defendants conduct. In fact, David could transfer Tony to his other workmate if he is not familiar with the way which suggested by the leading dentist. However, David chose to do it by using the strong glue which causes all the detriment. Conclusion Hence, David did breach the duty of care of Tony as he was the reasonable person who should foresee the monetary value and it is easy to eliminate the handicap. LOSS OR DAMAGE FOLLOING FROM BREACH OF employment IssueWas Plaintiff (Tony)s damage the direct result of defendant (David or the Bright Smiles Dental Surgery) breach? Rules * Causation (but for test) But for the conduct of defendant, would the damage have been suffered? The test was explained well by Lord Denning in shilling v. Kirby Maclean Ltd (1952) 2 ALL ER 402 at 407 , as follows If you can study that the damage would not have happened but for a particular geological shimmy, indeed that fault is in fact a cause of the damage but if you can say that the damage would have happened just the same fault or no fault, then the fault is not a cause of the damage.If there is more than one cause of the damage the but for test will have limited application. In much(prenominal) case the courts will use a balance of probabilities test in determining causation. * withdrawnness of damage (reasonable foreseeable test, the test is objective) would a reasonable person have foreseen the damage? * Assessment of damages the aim o f damages is to compensate the plaintiff for the divergence or damage that flowed from the defendants breach of duty of care owed.Such loss or damages is quantified by the judge perceive the case to compensate the plaintiff not only for their actual loss but for their future potential loss as well. Application afterwards diagnosing of Tonys mouth, it was certified that there was a severe infection in Tonys gum that was shown in tests to be caused by the method of fitting of the artificial teeth. In fact, as David decided to use the dental glue, instead of the traditional method that was recommended by the leading dentist.And David, who is the reasonable person, owned the duty of care of Tony. According to the fact, Tony not only suffers variety of natural damage but also physiological damage. He became depressed delinquent to his appearance and loss of work, and is seeing a counsellor for therapy who suggested him to go for a holiday. Therefore, he had suffered the medical and dental write off total $ 14, 000, loss of remuneration $ 12,000, and counselling$1,800. And the cost of trip is $ 5,000. Conclusion Therefore, Tonys damage without delay resulted from David breach of duty of care.If He in civil proceedings is successful, a remedy will be rewarded as compensation of dental expense $ 14, 000, loss of wages $ 12,000, and counselling$1,800. And the cost of trip is $ 5,000. What is more, he could DEFENCES TO AN performance IN NEGLIGENCE Issue Are there any defences procurable to defendant (David or the Bright Smiles Dental Surgery)? Rules Defences to an action in omission * Contributory negligence It occurs where the plaintiff can be held partly to institutionalize for the loss sustained as result of a failure to take reasonable care against a foreseeable risk of injury.This rule has been modify by statue in Section 26 of the Wrong Act 1958 3(Vic. ) Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a strike in respect of that damage shall not be frustrated by reason of the fault of the person suffering the damage, but the damage recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage. Voluntary assumption of risk if a person assumes the risk of injury voluntarily, this is complete defence to a claim of negligence. It is difficult defence to rise as it must be proven that the plaintiff was aware of the risk and accepted that risk freely. Application After checking Tonys x-rays, David extracted the teeth and put the artificial teeth in place. However, David was not familiar with the accepted method of attaching artificial teeth recommended by leading dentists and instead attached them by way of strong dental glue.However, it was David situated to use the strong dental glue instead of the method recommended by the leading dentist. On the other side, Tony should figure out that his method is distinct from the one which recommended by the leading dentist, and he should do some more consulting of the new method which was going to be used in his surgery. Conclusion Therefore, Tony did contribute to his damage as he did not check his new method which causes the inflection and further damage.