TORTS MID-SEMESTER EXAM
SEMESTER 1 – 2005
Mark: D - 73/100
Q1
Mario v Dr Tuck
Negligence
Duty of Care
A doctor has a duty of care to a patient as a widely accepted relationship. Dr Tuck was required to be aware that her actions may cause a reasonably foreseeable risk (Chapman v Hearse). It will not be argued otherwise
Breach
The question is whether a reasonable person would modify their behaviour to avoid a reasonably foreseeable risk of harm. s5B of the Civil Liability Act 2002 (NSW) provides the following
a)Risk was foreseeable: It has been shown Dr Tuck in her professional capacity ought to have known that risk of harm was possible in her surgery.
b)Risk not insignificant: The risk of harm occurring from the surgical procedure was not insignificant – it is reasonable to say that any surgical operation inevitably involves some risk – a reasonable person in defendant’s position would have foreseen that a surgical operation involved a risk of injury to plaintiff (Wyong v Shirt)
c)Would a reasonable person take precautions against harm?
It is necessary to consider the standard of care required by professionals. S5(O) of CLA states that by acting in concurrence with peer professional opinion, where the opinion was not irrational, a surgeon will not be held negligent. [However, the Act also allows that the other opinion that thread increased infection risk may also be considered. [Is this correct?] If so found; probability of risk, seriousness of risk, burden of taking precaution must be considered. Standard then would be one of a reasonable surgeon practising professional care.
Probability is probably reasonably high. Given two schools of thought, determinable that infection has occurred before.
Seriousness: Infection is a serious risk – it may lead to other complications. A high seriousness leads to higher amount of care required by Dr Tuck (Paris v Stepney Borough Council). A surgeon in professional capacity would know the seriousness of risk (Glasgow Corp v Taylor) and be required to act accordingly.
Burden: Reasonably low: to use other thread is just as easy but may lead to undesirable scarring – but would have lowered risk of infection. However CLA s5C(b) = Fact that the other thread may have been used does not affect liability in way thing was done. Considered, low burden.
Elements combine of high probability and seriousness of risk and a low burden to reasonably alleviate risk. This will show that duty has been breached as a reasonable surgeon would have altered actions. Howver this will be overridden by s5(O) as it will be held that surgeon was acting under seemingly reasonable professional opinion. [Good!]
[Very good discussion + use of relevant principles and authorities.
Perhaps the only doubt about your conclusion might arise if M was not adequately warned of risk of infection.
[Also – Need to discuss battery. – i.e. not consented to as very different type of operation.]
Q2
Mario v Dr Tuck
Negligence
Duty of Care
As mentioned in Q1, a doctor owes their patient a duty of care. The issue requires further consideration however: The plaintiff was clearly a person to whom and injury could reasonably have been foreseen for, which is all that is required. The precise manner of injury (i.e. having his watch stolen) is not required to be foreseeable (Chapman v Hearse). Mario would argue this.
Dr Tucki however, may rely on (Modbury v Anzil) which provides that a duty of care is not owed to someone for a risk arising due to the random criminal acts of 3rd parties. Although Dr Tuck may have had the capacity to act, she was not obligated to act: a view consistent with Agar v Hyde whereby the distinction is made that no duty will be owed for a failure to act – only for a positive act causing damage. Thus, only if Dr Tuck had made provisions for the protection of her patient’s belongings, would she have fallen within the scope of duty. Had many items gone missing in similar past circumstances, a duty may have been owed (Modbury v Anzil).
On the other hand, there existed a special relationship between Dr Tuck and Alan (one of his ‘students’). Mario would argue that Dr Tuck had sufficient control over Alan’s actions such that a duty was owed to people that would be at risk from actions of a student. (Dorset Yacht v Home Office).
Policy considerations may also come into effect here. It would be argued by Dr Tuck that her overriding duty was owed to patient’s health and that if properly acting in her professional capacity, she could not reasonably be expected to alleviate risks of property loss caused by students.
Weighing up these arguments, it will be held that although Dr Tuck owed a general duty to her patients, due to reasons of inability to control [ but surely has complete capacity to control patient, access to him etc, + he is very vulnerable + reliant on Dr T] and her overriding duty for the safety of patient during surgery, no duty will be found in relation to theft of watch.
[A good discussion, though the ultimate conclusion is questionable]
Q3
Dr Tuck v Alan
Trespass to land
A trespass must be direct and intentional and be without consent for an action to succeed. Was Alan committing trespass to land once he started filming and at the point he stole Mario’s watch?
Alan was clearly intentionally in the Dr’s surgery. The act thus satisfies this element and it remains to consider the issue of consent and to what extent this may have existed. Even though no damage occurred, trespass is actionable per se so no damage need be proven.
Dr Tuck gave express consent for medical students to be present in her surgery. So here express consent was given probably with the condition that the invitees were there in good faith, bona fide with purposes of education (Lincoln hunt v Willesee)
Dr Tuck would claim that the consent did not extend to the act of Alan filming the operation or indeed to the point when Alan stole Mario’s watch. It is at the point of when he started filming that the trespass first occurred (Lincoln Hunt v Willessee). By remaining on the land and then stealing the watch, Alan may be committing continuing trespass.
Alan may claim that his permission to be in the surgery was never revoked by Dr Tuck and he was thus not trespassing at any point. (Cowell v Rosehill Race Course). However Dr Tuck did not know that Alan was filming or that he stole the watch so it is not reasonable that a notice revoking consent be issued. It is sufficient that Alan broke the limits of the consent (if such limits as not filming/stealing another’s property were either implied or expressed by Dr Tuck) and was thus trespassing as soon as he did.
An action of trespass will be provable against Alan. Although he initially had consent to be on the land, this was revoked once he broke the limits of the consent.
[Good use of authorities]
[A generally well reasoned and structured answer] - 73