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I need some assistance with these assignment. law of torts: an action in negligence Thank you in advance for the help!
I need some assistance with these assignment. law of torts: an action in negligence Thank you in advance for the help! In order to prove breach the claimant must produce evidence which infers a lack of reasonable care on the part of the defendant. However, if no such evidence can be found, the necessary inference may be raised by using the maxim res ipsa loquitur, ie the thing speaks for itself. See: Scott v London & St Katherine Dock Co (1865) One would very much like to argue that this is a case of the claimant being the author of his own misfortune (Philcox v Civil Aviation Authority, The Times, 8 June 1995) and therefore no duty was owed in the first place. Unfortunately, on the facts, it would appear that a duty was owed (driver and passenger), that there may have been a breach of the duty and if so, that Mr. Andy's broken nose was a consequence of that breach. However, there are two points which may be argued in Suzie's favor. Firstly she had been driving with the utmost care as she knew that they were near an accident black spot. The standard of care to be expected from a learner-driver is the same as that required by a qualified driver: Nettleship v Weston [1971] 3 All ER 581. Secondly, Mr. Andy chose to break the law by not wearing his seat belt. The first point goes toward foreseeability and the second to the remedy of damages.
Suzie might be able to successfully argue that she was not in breach of her duty as one could not foresee that Mr. Andy would be injured when she did an emergency stop. However, this is a weak argument given that she knew Mr. Andy was not wearing his seat belt and therefore the risk of injury to her passenger was increased. Can Suzie rely on the argument that she was avoiding a greater evil by performing an emergency stop to avoid harming the child Yes, to a certain extent? It will not prevent Mr. Andy from successfully suing her. Yet it may go towards reducing the amount of compensation he would be awarded as Suzie may be able to show that if Mr. Andy was wearing his seat belt he would have been able to mitigate the damage to his nose. It is submitted that a stronger argument would be for Suzie to argue that the damage to Mr. Andy's nose did not arise from any negligence on her part, but solely as a result of criminal activity on his part. Whilst there is no direct authority on this argument, the following matter may suggest the reasoning of the Court in such cases: Smith v Cribben [1994] PIQR 218, CA A driver D tried to overtake X on a dual carriageway, but the dual carriageway ended before D had completed the maneuver and D collided with two vehicles coming the other way, killing P. P's family sued for compensation and D joined X as a third party, bringing a further claim against him for her own injuries. Otton J found X 25% liable for the accident because he had not slowed to allow D to complete her maneuver safely, but the Court of Appeal allowed X's appeal: his duty was to drive normally at a proper speed (about 65 mph, on the facts), not to extricate D from the danger she herself had created. . If Suzie does not have comprehensive insurance she will have to fund the ensuing action herself. Even if she is found in breach of her duty, it is unlikely that Mr. Andy will receive full compensation due to his contributory negligence in failing to obey the law as well as to protect himself by wearing his seat-belt.
