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Negligence Action

Posted on:1/27/2012
Negligence actions often arise from matters of diagnosis or subsequent procedures or management. The failure to obtain consent may also result in actions in negligence

The standard of care and skill required is that possessed by a person of ordinary competence in the same field. Actions for negligence may also arise through a failure to provide sufficient information so that the consent obtained is not a proper consent. In relation to information procedures by doctors, the standard of care is determined by reference to the information needs of the patient and not, as with diagnosis and treatment, by reference to the usual practice of doctors in the same field.


For an action in negligence against a doctor or medical professional to succeed, the patient (the plaintiff) must establish, on the balance of probabilities that:

  • A duty of care was owed by the doctor (defendant)
  • The defendant's conduct fell below the required standard of care
  • The breach of the duty of care caused, or contributed materially to, the mental and/or physical damage suffered
  • The defendant (doctor) could reasonably foresee the resultant loss or damage
  • The loss or damage is assessable monetarily

All the above elements must be proved on the balance of probabilities and the onus is on the plaintiff to prove these elements and not on the defendant to disprove them.

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