Main introduction

There are three types required to be established for Tony which must be proved in a negligence claim. First, whether there is a duty of care owed by David to Tony; second, whether there has been a breach of the duty of care by David and third, that damages or losses has suffered as a result of breach. Tony will also need to contemplate the defences that could occur in this case; therefore contributory negligence and voluntary assumption of risk may apply. Overall Issue Can Tony get compensation for his medical (dental expenses), loss of wages, and counselling and trip expenses from David? Sub-Issue 1 Does David owe Tony a duty of care? Rule 1 The essential precedent to determine whether duty of care exists has been established in the case of Donoghue v Stevenson(1932). There are two common factors that must exist before the law will say a duty of care exists. Thus are foreseeability and proximity. An objective test used to determine whether a reasonable person would foresee that damage may result from the defendants action. The harm or injury suffered by the plaintiff must be reasonably foreseeable. If there is an established relationship between both parties then the court will automatically recognise a duty of care being owed. In Donoghue v Stevenson(1932), Lord Atkin concluded that we all owe a duty of care to our neighbours. Neighbour are persons who are closely and directly affected by his or her action. Application 1 On these fact, it is reasonably foreseeable that if David did not give the proper service that could harm or affect customers. Therefore, Tony and David are related since tony was a customer of David.

Conclusion 1 David owes Tony a duty of care. Sub-Issue 2 Has David breach its duty of care? Rule 2 The test used is to ask whether David has exercise a reasonable standard of care. An objective test where a reasonable person foresees the possibility of harm applied. A several factors such as the likelihood of injury, gravity of injury, steps needed to remove the risk, and benet of conduct will be considered by court in determining a breach of duty of care. Likelihood of injury is the possibility that there will be an injury. Gravity of injury is the seriousness of the injury resulted if happens. Steps needed are the steps required to eliminate the risk. Benet of conduct is the benet available from resulting the injury if exists. This weighing test applied from Wyong Shire Council v Shirt(1980). Application 2 Applying the weighing test:
y

Likelihood of injury : There is a low possibility for having a problem with unrecommended method where it still acceptable.

Gravity of injury

: It is quite serious because Tony suffered a severe infection

and had to stay in hospital for a week as well received further operations.
y

The steps needed

: To reduce the risk would have been straight forward in that it

would not have been difficult to diagnose Tonys teeth after the attachment or recheck his service result to ensure that Tony has no complications.
y

There was no benefit of conduct.

Therefore, David has not acted as reasonable dentist must do. He should not attach the articial teeth with an unrecommended method by leading dentists and could result infections. Conclusion 2 Failure by David to act reasonably means that he has breach his duty of care.
2

Sub-Issue 3 Has Tony suffered reasonably foreseeable damages as a result of Davids breach of his duty of care? Rule 3 It must be proved that the loss or damages was directly caused by the Davids breach of his duty of care and not too remote. Two parts are required in this step: causation and remoteness. In the causation part, but for test is applied which has established in Cork v Kirby Maclean Ltd (1952) case. The test asks but for the Davids conduct could loss or injury still have occurred? An objective test is also used to determine the question of remoteness where it is reasonable foreseeability where established in The Wagon Mound No 1 (1961) and The Wagon Mound No 2 (1967) cases. Application 3 Applying the but for test to the facts, Tony would have not been suffered without Davids breach of his duty of care. Applying the remoteness test to each damage that he suffered, it is reasonably foreseeable that what David did has affect Tonys health by doing the unrecommended method of attaching artificial teeth. This matter has also affect Tonys job and he becomes depressed due to his appearance. Therefore, he can acquire his compensation of his medical and dental expenses for $14,000, loss of wages for $12,000 of three months not working, and counselling $1,800. Nevertheless, Tony could not get the compensation for trip to Hawaii for $5,000 because is too remote from Davids breach of his duty of care. Conclusion 3 The damages or losses suffered by Tony caused by the breach of Davids duty of care were reasonably foreseeable and not too remote form Davids breach apart from the cost of a trip to Hawaii. Sub-Issue 4 Is there any defences may be used by David against Tony?

Rule 4 There are two defences to an action in negligence. They are contributory negligence and voluntary assumption of risk. Contributory negligence means that if the plaintiff had contributed to the happening of the event, damages will proportionately reduce. Voluntary assumption of risk means that if the plaintiff knew the risk and voluntarily assumed it, defendant will have total defence. Application 4 On these facts, there was not any negligence occurred that Tony did which is related to Davids breach of his duty of care. He also did not know that he could suffer an infection in his gum and fell out his teeth. Conclusion 4 There is no defence that could be used for David to be claimed and arise in this case. Overall Conclusion Tony is likely to succeed in negligence action against David. He can also get his compensation for medical and dental expense, loss of wages, and counselling but not for his cost trip to Hawaii.

Bibliography Barron, M.L., Fundamentals of Business Law, 5th edition, McGraw Hill, Australia, 2006

Table of Cases Donoghue v Stevenson [1932] AC 562 Wyong Shire Council v Shirt (1980) 146 CLR 40 Cork v Kirby Maclean Ltd [1952] 2 All ER 402 at 407 Overseas Tankship(UK) Ltd v Morts Dock and Engineering Co. Ltd (The Wagon Mound(No. 1)) [1961] AC 388 Overseas Tankship(UK) Ltd vMiller Steamship Co. Pty Ltd (The Wagon Mound (No.2)) [1967] AC 617 (PC)