Duty of care
Does defendant (David or the Bright Smiles Dental Surgery) owned duty of care to plaintiff (Tony)?
* The neighbour principle: In Donoghue v Stevenson1, Lord Atkin concluded that we all owe a duty of care to our “neighbors”, meaning those persons who we should have in mind when we are contemplating actions that we take as we go about our business and private lives. * Neighbour Defined: “My neighbors are persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called in question”. * Foreseeability: For an action in negligence to succeed, it must be foreseeable that the act (or omission) of the defendant could cause harm to the plaintiff. The test is one of “reasonable foreseeability”, which is an “objective”. * Proximity: There must be some relationship between the parties for the duty to exist. In other words, proximity that requires care to be taken must exist.
As Tony was having the surgery in the Bright Smiles Dental Surgery, therefore, whatever will happen 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 teeth by strong dental glue instead of the way which recommended by leading dentists. If David did not change the way of attach the teeth, Tony would never get a severe infection caused by the method of fitting of the artificial teeth.
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 harm to the plaintiff, which is Tony.
Breaching that duty of care
Does the defendant (David or the Bright Smiles Dental Surgery) breach his duty of care?
* Reasonable person-Standard of care: the standard person would have foreseen harm in the circumstances and would have taken steps 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 injury: If the risk 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 eliminate the risk 4. Benefit (social utility) of the defendant’s conduct: The social utility of the defendant’s conduct must be weighed against the gravity of the risk.
As David’s conduct is measured against the reasonable person who should told Tony there was a risk to use the dental 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 new desk while he was on TV presenting the evening news. After 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 defendant’s 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 damage.
Hence, David did breach the duty of care of Tony as he was the reasonable person who should foresee the damage and it is easy to eliminate the damage.
LOSS OR DAMAGE FOLLOING FROM BREACH OF DUTY
Was Plaintiff (Tony)’s damage the direct...
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