Establishing The Presence Of Negligence †Myassignmenthelp.Com

Question: Whether A Breach Of Duty Of Care Took Place On Part Of Michelle, Or Not? Answer: Introducation In a case of negligence, party A owes a duty of care to party B, due to the proximity between the parties where the actions of one can impact the other, and when A undertakes such action, B is injured or harmed (Statsky, 2011). For establishing the presence of negligence, the injured harmed party has to show that a duty of care had been present, which had been contravened, and resulted in injury or harm, which was not too remote, reasonable foreseeability, and that there had been a direct causation between the injury and the breach of duty of care (Greene, 2013). A noteworthy case for making a case of negligence for showing presence of duty of care is Caparo Industries plc v Dickman [1990] 2 AC 605 where the court presented a threefold test where there is a need to show that the parties were in proximity for the actions of one to affect other, there has to be a reasonable foreseeability in the risk of harm, and there has to be justness for imposition of penalties on the defaulting party (Lunney and Oliphant, 2013). In the given case study, an intoxicated driver is bound to cause an accident, so there is a presence of reasonable foreseeability of risk of harm. The duty of care is care was owed by Michelle towards Rebecca as she was the driver of the care and owed a duty of care to drive carefully and without being intoxicated to her passenger Rebecca. Applying the case of Caparo Industries plc v Dickman, there was proximity between Rebecca being a passenger and Michelle being a driver. Reasonable foreseeability has already been shown, so applying penalties would be just in this case, thus fulfilling the threefold test. Hence, a duty of care was owed by Michelle to Rebecca. There is a need for establishing that after presence of duty of care, the same was violated. Donoghue v Stevenson [1932] UKHL 100 was a case in which the court denied the claim of the manufacturer that a duty of care was not present in this case due to the fact that the parties had proximity between them along with presence of the risk of harm was reasonably foreseeable. As this duty was failed, the manufacturer was asked to reimburse the plaintiff for their illness. This case clearly highlighted the different elements of negligence, which have to be present to show a case of negligence (Latimer, 2012). Michelle was supposed to take care while driving, but by Michelle being intoxicated and causing an accident; a case of negligence can be made by Rebecca against Michelle on the basis of Donoghue v Stevenson. The issues of proximity and foreseeability have already been established. The owed duty was breached when Michelle made the decision to drive in intoxicated condition. Hence, a breach of duty of care took place on part of Michelle. There is a need to show that the injury resulted from the breach of duty of care of the defendant, in terms that the injury was a direct result of the negligence of the plaintiff. There is also a need to prove that the injuries were substantial in nature and not too remote, as that would result in damages not being awarded as was seen in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, i.e., the Wagon Mound case (H2O, 2016). It is very clear from the case study that Rebecca was injured due to the breach of duty of care on part of Michelle, where she drover while being drunk. Also she sustained serious injuries so, unlike the Wagon Mound case, damages have to be awarded to her. Hence, the injuries were caused as a result of the actions undertaken by Michelle and these injuries were not too remote. Contributory negligence denotes the involvement of the plaintiff in the injury they receive due to the negligence of defendant (Dongen, 2014). In Froom v Butcher [1976] 1 QB 286, the amount of damages awarded to the plaintiff were reduced by 100 as the plaintiff was not wearing the seat belt when the accident occurred owing to the negligence of the defendant (Swarb, 2017). A claim can be made by Michelle for contributory negligence as Rebecca contributed to her injuries by accepting the ride. This would mean that the damages awarded to Rebecca would be brought down as was seen in Froom v Butcher. Though, there is no need of applying contributory negligence, as it would only reduce the damages partly. Conclusion Hence, Michelle can use contributory negligence as the defence; though, the same should not be made. Volenti non fit injuria is another defence used by the defendants which shows that the plaintiff voluntarily takes the risk when they clearly know that there is a presence of risk which can cause an injury (Turner, 2013). The cases which involve drunk driving highlight the diminished ability of the drivers as a result of intoxication and which results in an accident. In cases where a passenger accepts ride from a drunk driver, this defence can be used. Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39 is a case where the passenger was aware of the fact that the driver was intoxicated and was inebriated due to intoxication. Yet, the passenger decided to undertake the services of this driver in a voluntary manner. Here, the High Court decided that negligence is not present as the driver had not breached the duty of care owed to the passengers due to the voluntary assumption of risk by the plaintiff (Jade, 2017). The presence of volenti non fit injuria in this case can be established with the help of Insurance Commissioner v Joyce. In this case, Rebecca clearly knew that Michelle had been intoxicated and yet she decided to take ride with her. Applying the decision given in quoted case, a breach of duty of care would not be established as Rebecca voluntary took the risk of harm. Hence, a claim by Rebecca against Michelle for negligence would fail owing to the voluntary assumption of risk. References Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff. Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge. H2O. (2016) Wagon Mound (No. 1) -- "The Oil in the Wharf Case". [Online] H2O. Available from: https://h2o.law.harvard.edu/collages/4919 [Accessed on: 14/09/17] Jade. (2017) Insurance Commissioner v Joyce. [Online] Jade. Available from: https://jade.io/article/64545 [Accessed on: 10/09/17] Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited. Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press. Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning. Swarb. (2017) Froom v Butcher: CA 21 Jul 1975. [Online] Swarb. Available from: https://swarb.co.uk/froom-v-butcher-ca-21-jul-1975/ [Accessed on: 10/09/17] Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.