Negligence

Apply the elements of negligence to the following case study. On the basis of your findings advise the plaintiff whether he will be likely to succeed in a negligence action and what remedies may be available. In your answer discuss whether any defences may be raised. You MUST reference legal rules used in your answer with relevant cases.

Case Study

Bright Smiles Dental Surgery is a dental practice. David is employed there as a full-time dentist.

Tony, a TV news-presenter, attends the surgery for two adjacent wisdom tooth extractions.He explained to Davidthat he was worried the extractions wouldleavea large gap in his mouth which may spoil his appearance. David reassured him and said he could insert two artificial teeth in its place.

After checking Tony’s x-raysDavid extracted the teeth and put the artificial teeth in place. However, Davidwas not familiar with the accepted method of attaching artificial teeth recommended by leading dentists and instead attached them by way of a strong dental glue.

That night while Tony was on TV presenting the evening news, both artificial teeth fell out on the news desk revealing a huge gap in his teeth. He was extremely embarrassed and upset and had to be replaced with another news presenter. When he got home his whole mouth was aching and he complained of severe pain in the gap left by the extraction.

He went to the doctor who referred him to the DentalHospital. The doctors diagnosed a severe infection in Tony’s gum that was shown in tests to be caused by the method of fitting of the artificial teeth.

Tonyhad to stay in hospital for a week and now has to receive further dental work to fill the gap with a permanent support structure inserted in his gums. He is unable to work as a TV presenter until this is completedthree months later.  He becomes depressed due to his appearance and loss of work, and is seeing a counsellor for therapy, who recommends taking a holiday out of Australia where he won’t be recognised.His medical and dental expenses total $14,000, loss of wages $12,000, and counselling$1,800.  The cost of a trip to Hawaii is $5,000.

Tony is seeking compensation for all these costs. Advise Tony as to his legal rights in negligence. In your answer, discuss defences and remedies in your answer.

Question

This question focuses on negligent actions. You should consider the following:

•    Whether a duty of care is owed

?    Consider the case of Donoghue v Stevenson (1932) which establishes the requirements of a duty of care. State the two requirements.
?    State the ‘neighbour principle’ and define ‘neighbour’
?    Explain the test of reasonable forseeability of harm and state that this is an ‘objective’ test
?    Identify whether this is a situation which the court identifies as giving rise to the existence of a duty of care (eg road user to other road users; school authority to students, etc…)

•    Whether there has been a breach of the duty of care – Remember, this is not the same as establishing the duty of care

Consider:
?    The test used to determine whether the defendant has breached the duty of care (ie the standard of care exercised by a reasonable person) – ask would a reasonable person have foreseen harm in the circumstances and have taken steps to prevent it?
?    The factors the court takes into account in determining whether there has been a breach of the duty of care– the likelihood of injury, and the gravity of injury, if injury did occur, must be balanced against the effort required to remove  the risk of injury ‘the expense, difficulty and inconvenience’ and the social utility (ie benefit) of the defendant’s conduct.

•    Whether the losses/damages were caused as a direct result of the defendant’s breach and whether the losses/damages were too remote. Note:
Consider:
?Causation – The ‘but for’ test which is the essential part of causation
Cork v Kirby Maclean Ltd [1952] 2 All ER 402
?Remoteness – The concept of remoteness/reasonable foreseeability
(ie Would a reasonable person have foreseen or anticipated this type of loss would occur?) Refer to The Wagon Mound No 1 [1961] and The Wagon Mound No 2 [1966]

•    Whether any defences can be raised by the defendant

?Consider the defences that may apply to an action for a negligent actions
(i.e. contributory negligence, voluntary assumption of risk). Can the defendant raise and argue either of these defences?
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