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Question 1
Mario has two options available in tort to Dr Tuck
a)Mario has an action in Battery against Dr Tuck, in relation to removing the cyst without his consent. In Blackstone’s Commentaries (cited in Collins v Wilcock, per Goff LJ) it is asserted that every body is sacred and to touch without consent is forbidden. As Mario did not consent to the cyst being removed, and it caused direct interference with his body and was outside the realm of acceptable conduct (Rixon v StarCity) the elements of battery are proven.
Dr Tuck could argue necessity, but as the cyst was presumably not life threatening (and did not have to be dealt with immediately) it is likely that this defence would fail. [case law on necessity?]
b)Mario could present an action in negligence against Dr Tuck in relation to the use of surgical thread. As there was a direct interference with Mario’s body from the patient, and that the doctor and patient relationship is one that has an implied[it is explicit] duty of care, a duty of care exists. In terms of standard of care, the standard that Dr Tuck is required to adhere to is that of a reasonable person who possess the skill of a cosmetic surgeon (Rogers v Whitaker).
Breach of duty will be proven if the risk was foreseeable and “not far-fetched or fanciful” [not the test] or “insignificant” (Wyong/Civil Liability Act, s 5B), along with other factors to do with alleviating the risk, such as probability (Romeo v CC of NT), gravity (Paris v StepneyBC) and the burdens of taking precautions (CLA, s 5B).[You need to discuss these factors, merely stating them is not enough]
Dr Tuck performed an omission to Mario in not telling him of the option between two threads, and that the use of the safer option would result in a less pleasing cosmetic result. As this is an omission on the part of Dr Tuck, and this fact was, on the balance of probabilities, possibly crucial to Mario deciding to have the operation, it is likely that she was negligent in this respect. (Rogers v Whitaker)[You should also consider s 50 in relation to the choice of thread]
Question 2
A duty of care is most readily defined by Lord Atkin’s quote in Donoghue v Stevenson, outlining that a person is owed a duty of care if they are “so closely and directly affected” by ones act. Considering that the act of Mario’s watch being stolen is not a direct consequence of Dr Tuck’s actions (but only Alan’s) a duty of care from Dr Tuck to Mario cannot be directly established. Thus, an incremental method must be used to determine duty of care.
It is known from cases such as Modbury and Dorset Yacht that a defendant cannot have control over the acts of a third party. To suggest so would place a bigger burden on doctors – they would be required to perform their medical duties while also having to take care of their patient’s belongings. Thus the policy consideration of indeterminate liability (from all patients whose belongings were stolen while having an operation) and also the added stress and concentration required from doctors (conflicting responsibilities – Sullivan v Moody) would mean that a duty of care would not be found. [What about other factors such as vulnerability, assumption of responsibility and reliance? More discussion is required]
Question 3
The only action in trespass available to Dr Tuck in relation to Alan is Trespass to Land. For T to L to be successful, Dr Tuck must show that Alan’s act of filming the operation was direct, intentional and interfered with either the land[in possession of Dr T] or Dr Tuck’s usage or intended usage. Although Alan did not directly interfere with anything on the land, it is known from Lincoln Hunt v Willesee that there may be an implied licence to enter land, that licence only extends to a certain extent, that is “to members of the public bona fide seeking information”. Not, as Alan’s actions would suggest, to coming in with video cameras to film the operation so he exceeded his license to enter (R v Baker).
In Alan’s defence, he could argue that Dr Tuck gave implied consent and that the report was filmed and produced out of necessity to the general public.In terms of necessity, Alan could argue that uncovering Dr Tuck’s negligence was something that a reasonable person would do, and that he was acting in the best interests of the general public (necessity elements outlined in Re F: Mental Patient: Sterilisation). [Necessity not an issue here]As for the defence of consent, Alan could argue, in similar terms to Halliday v Nevil, that there was no sign preventing him from filming the operation, thus it should be allowed.
The only way Dr Tuck could stop the report from being aired on TV is with an injunction. For this to succeed, she would have to argue that the filming would cause damage that could not be remedied by monetary compensation (Lincoln Hunt v Willesee). [You are told not to consider remedies]
As it appears from the facts, it is likely that Dr Tuck’s action in trespass to land would be successful because it is clear that Alan exceeded his licence. Had there been evidence that Dr Tuck had performed many negligent procedures, it is possible then that a defence of necessity to the general public would apply. (obiter comment in Modbury per Gleeson CJ – the defendants may have breached their duty had there been a spate of attacks). As this is not seen to be the case, (Dr Tuck is depicted as a doctor of reasonable skill due to her fame), it is likely that the defence of necessity would fail.