Negligence Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
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    3
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7Negligence

Negligence

Legal Issue

John is badly injured after an ambulance driven by Mary clashes into him at an intersection. Apparently, Mary has been speeding and had put on the Ambulance’s Siren to warn other vehicles to get off the road. At the time of the accident, John could not hear the ambulance as he had his noise cancellation earphones on. The legal issue is whether Mary has a case for an action of negligence for John’s role in the accident?

For Mary to prove that John is liable for negligent action, she would have to satisfy the court that the case meets all the requirements for negligence. As seen in Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781, negligence was defined as acts and omissions that a reasonable man would not engage in to prevent causing harm to others1. In our case John should have acted responsibly to prevent injury to Mary.

In a negligence suit, the plaintiff has the burden of proof to show that all the elements of negligence are present in the case. According to Francis Trindade, Cane and
Lunney,
there are three elements of negligence that need to be satisfied2:

  1. a duty of care is owed to the plaintiff;

  2. The acts and omissions at the centre of the case breaches the duty mentioned above;

  3. An injury is caused to the plaintiff as result of the defendant breaching his duty of care.

  1. Duty of Care

The concept of the duty of cares was first introduced in the case of Donoghue Stevenson [1932] AC 562 at 580. Lord Atkin asserted that people owe a duty of care to their neighbours not to act in a way that may cause reasonably foreseeable harm3. Sullivan v Moody (2001) 207 CLR 562 developed a test for duty of care which is4:

  1. the potential of the defendant’s action to cause harm is foreseeable;

  2. Vulnerability of the plaintiff;

  3. Policy considerations

  1. Breach of Duty

Defendants are held to a standard of care when it comes to their conduct towards other people. In Scott v London & St Katherine’s Docks (1865) 3 H & C, a plaintiff is charged with the burden to proofing that the defendant failed to act within reasonable standards of care to ensure harm or injury wasn’t caused to the plaintiff 5.

  1. Causation

Arguably, the most important element of negligence is causation which obliges the defendant to show that the defendant action were the actual and direct cause of his injury or harm6.

Application

  1. Duty of care

It is hard for Mary to prove that John owes him a duty of care as regard the circumstances of the accident. The neighbour principle as established by Donoghue Stevenson [1932] AC 562 argues that persons have a duty of care towards those they interact with7. Following this interpretation, John owed a duty of care to other motorists to take reasonable steps to prevent harm to them. However, Grant v The Australian Knitting Mills ([1936] A.C. 562, a duty of care is only owed in circumstance where the omission or conduct has the potential to cause foreseeable harm. In this circumstance, John could not have reasonably foreseen that an over speeding ambulance could clash into him at an intersection8. Grant v The Australian Knitting Mills ([1936] A.C. 562 asserts that a duty of care is owed to a person if he is vulnerable to the defendant’s actions. To prove vulnerability a plaintiff has to show that the defendant was in a position to control their action and he/she did not take reasonable harm to prevent harm to the plaintiff. In this case, John was not in a position to control Mary’s actions and John had taken all reasonable steps to ensure that reasonable foreseeable harm to other motorists would occur. Mary’s actions were not within the scope of John’s duty of care and there is little that John could have done to prevent harm to Mary. In fact, Mary actions of over speeding were the cause of the accident that badly injured John.

Courts would also be reluctant to impose a duty of care on drivers in situations similar to John. Imposing a duty of care to motorists who suffer injury from the irresponsible and reckless driving of others is not fair and just. John’s action of putting his noise cancellation earphones had not violated his basic duty of care to ensure that other motorists on the road did not suffer foreseeable harm and injury.

  1. Proof of Breach

If Mary can prove that John indeed owed him a duty of care she would also have to prove the duty was breached. If the duty is established as the duty to ensure that other motorists are safe on the road, Mary would only have to prove that John had noise cancellation earphones on at the time of the accident. In Scott v London & St Katherine’s Docks (1865), a breach of duty is defined as the failure to act within established standards of care9. John act of putting noise cancellation earphones in the middle of traffic is a clear breach of the duty to prevent harm or injury to other motorists. Motorist should not have earphones or other devices that distract their attention from the road. However, the breach of duty of care can only be proved by persons whose there is a potential of reasonable harm occurring10. In this case, there was not reasonable risk of harm to drivers who were driving cautiously and within the speed limit. Instead, Mary arrived at the intersection at a very high speed; a situation which wasn’t reasonable to a driver at the intersection like John. Therefore, Mary cannot prove that John breached his duty of care as such a duty did not exist.

Causation

If Mary is able to prove he was owed a duty which was later broken be John, she will also be required to prove causation. In proving causation, the but for test is used. As seen in South Australia Asset Management Corpn v York Montague Ltd and Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10, the “but for” test asks whether the defendant injury would have occurred in the absence of the plaintiff’s action or omission11. In this case, John’s action or omissions only contributed minimally to the occurrence of the accident. In fact, Mary is the person who rammed the ambulance into John’s vehicle as he waited at the intersection.

John’s defence

As seen in Bowater v Rowley Regis Corp [1944] KB 476, John may also rely on the volenti non fit injuria defence. In this defence, the defendant needs to show that the plaintiff voluntarily assumed the risk that results in harm or injury. In this case, Mary voluntarily assumed the risk of a possible road accident by recklessly driving at high speed into the intersection. Mary also inappropriately used the privileges granted to ambulances as emergency vehicles for personal convenience. Arguably, Mary had voluntarily assumed the risk of harm to herself by over speeding into the intersection and using the Ambulance siren to clear her way on the busy road12.

John may also rely on the defence of contributory negligence which is easier to prove in the circumstances. Contributory negligence apply where harm to a person arise due to their own fault and the fault of the plaintiff. Contributory negligence mostly applies when harm or injury can be avoided if the plaintiff had taken reasonable steps to avoid harm. As seen in Pitts v Hunt (1990) 3 All ER 344, a claimant may be assigned the majority of responsibility on a negligence action13. In this case, both John and Mary may be said to be contributors to Mary’s injuries through their negligent action. John was negligent as he had noise cancellation earphones while driving through peak time traffic. John was also responsible as he would have heard the approaching ambulance’s siren and moved his car out of the way. On the other hand, Mary was over speeding at an intersection and his irresponsible driving resulted in the accident.  

Conclusion

Mary would not succeed in an action of negligence against John as it is impossible to establish the three elements required in successful negligence action. First, John as a driver does not owe a duty of care to motorist driving recklessly. Secondly, John’s conduct as regard the accident was not below the reasonable standards of care required of motorists to other motorists. Mary may not also be able to link John’s action and conduct to the harm she suffered because of the accident. John may also rely on the volenti non fit injuria defence as Mary voluntarily assumed the risk of an accident by driving recklessly. Moreover, John can plea for contributory negligence as Mary’s negligent action also contributed to her injury.

Bibliography

  1. Articles/Books/Reports

.Mark Lunney , Peter Cane, Francis TrindadeThe Law of Torts in Australia (Oxford university Press, 2007)

Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781

Bowater v Rowley Regis Corp [1944] KB 476 a

Donoghue Stevenson [1932] AC 562

Donoghue Stevenson [1932] AC 562 at 580
Sullivan v Moody (2001
) 207 CLR 562Scott v London & St Katherine’s Docks (1865) 3 H & C

Grant v The Australian Knitting Mills ([1936] A.C. 562

Pitts v Hunt (1990) 3 All ER 344

South Australia Asset Management Corpn v York Montague Ltd and Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10

1
Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781

2Francis Trindade, Peter Cane , Mark Lunney .The Law of Torts in Australia (Oxford university Press, 2007)

3
Donoghue Stevenson [1932] AC 562 at 580

4
Sullivan v Moody (2001) 207 CLR 562

5
Scott v London & St Katherine’s Docks (1865) 3 H & C

6
See, , above n 2Lunney and Cane, Trindade

7
Donoghue Stevenson [1932] AC 562

8
Grant v The Australian Knitting Mills ([1936] A.C. 562

9
Scott v London & St Katherine’s Docks (1865) 3 H & C

10
See, , above n 2Lunney and Cane, Trindade

11
South Australia Asset Management Corpn v York Montague Ltd and Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10,

12
Bowater v Rowley Regis Corp [1944] KB 476 a

13
Pitts v Hunt (1990) 3 All ER 344