Law203 dean v phung hypothetical assingnmt PDF

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Dean v Phung How to approach a hypothetical assignment question based on the facts in this case. Issue 1 – Battery (>250 words) 1.

What arguments did the patient make about battery? On what authorities did the patient rely? What did the Court of Appeal determine on this issue, and why? Scaffold: 





discuss

the

patient’s

perspective

under

this

heading:

Patient’s case: It can be inferred that the patient relied on the authority of Marion’s Case for the proposition that a surgeon who performs a procedure without his patient’s consent commits an assault; and further on the authority of … that prima facie consent to a procedure may be vitiated by the surgeon’s fraud. [Note: this is the “rule” part of IRAC] Patient’s arguments: The patient was unsuccessful in his cause of action in trespass at first instance. The patient argued…but the trial judge found … [insert reasoning and conclusion of trial judge – hint: look at paras [37] – [46]] [Note: this is the “application” and “conclusion” part of IRAC] Court of Appeal’s determination: On appeal the patient was successful in his cause of action in battery. This is because… [insert law, findings and conclusion of Court of Appeal in respect of the patient’s arguments] [Note: this is also the “rule”, “application” and “conclusion” part of IRAC]

Issue 2 – Consent (>250 words) 2. What arguments did the dentist make about consent? On what authorities did the dentist rely? What did the Court of Appeal determine on this issue, and why? Scaffold: discuss the dentist’s perspective under this heading:  Dentist’s case: The dentist argued that the patient had the onus of proof of establishing the alleged fraud, that a finding of fraud “should not be lightly made”, and that the evidence was not capable of supporting that finding (at [35]).  Dentist’s arguments: The dentist was successful in his defence at first instance. This is because… [state the law and findings of fact accepted by the trial judge and his Honour’s conclusion on the facts found – hint: look at para 35].  Court of Appeal’s determination : On appeal the patient prevailed on the question of consent. This is because… [state the law, findings of fact and conclusions of the Court of Appeal in respect of the dentist’s arguments – hint, look at paras [64]-[66]]. Issue 3 - Damages (...