B Law Essay

2207 Words Oct 2nd, 2012 9 Pages
Question 1

Negligence refers to careless behavior which means somebody is not taking enough care in a situation where care is expected. People must be careful if actions affect others. If Alphonso wanted to sue the doctors for negligence, he should prove the four elements of negligence.

For the Elements of negligence, it includes the duty of care, standard of care, causation and remoteness of damage.To duty of care, the defendant owed the plaintiff a duty of care about the reality of the lap band surgery. And the defendant had a responsibility to take care not to cause any loss to plaintiff. As in the Lord Atkin in Donoghue v Stevenson[1], one person should avoid acts or omissions that would be likely to injure his/her neighbor.
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For the causation, the loss was caused by the defendant’s breach of the duty of care who gives the wrong advice to the plaintiff and the causation would not happen if the defendant had acted reasonably carefully. The plaintiff would not have lap band surgery if the plaintiff had known of the risk of the surgery. As in the case L Shaddock and Associates Pty Ltd v Parramatta City Council[4], negligent misstatement is an extension of general duty of care to areas involving professional advice such as false statements and misleading advice. Plaintiff must prove all elements of negligence. Thus, in this case, Alphonso must prove that duty of care owed by defendant to himself. There is foreseeable harm from carelessness and proximity between plaintiff and defendant. Thus, the damage is directly caused by the doctor’s negligence, which corresponds with the situation in Chapel v Hart[5]. It was reasonably foreseeable that carelessness could cause the risk of damage to Alphonso in this case.
For the remoteness of damage, Alphonso should prove that the damage is not too remote. Otherwise, even if direct causation has been done, he cannot sue for damages, as in the case Yates v Jones.[6]

For the defense of negligence, there is a contributory negligence and voluntary assumption of risk. If the doctors are able to prove that the lack of care is partly done by Alphonso, the court will reduce the penalty. As in the case Cook v Cook[7], the plaintiff’s penalty was reduced.

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