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. Thus, it was reasonably foreseeable that the doctors had made the failure to warn the danger and led to Alphonso’s injury. Dr Corinthian is a specialist with expertise about the risk of surgery and he does know that Alphonso would rely on the information what is given by him, as in the case L Shaddock and Associates Pty Ltd v Parramatta City Council[2]. Moreover, Dr Blataslav owes a duty of care with regards to his knowledge about lap band surgery and he should know that Alphonso will rely on his knowledge.

For the standard of care, the defendant failed to act with a sufficient care and did not give the standard of care required in the circumstances. Dr Corinthian should tell the truth about the 33% chance of complications and a 10% chance of complete failure. If the standard of care is not breached, the defendant would not owe any liability for negligence, as in Romeo v Conservation Commission of the Northern Territory[3]. If the person is to provide professional information, he/she has taken a higher standard of care to their clients. For the chance of complications and complete failure, the doctors should warn their patients about