Tutorial

Business LawLaw of Tort

Question 1

The driver of a car driving at a fast speed hits a pedestrian who had just stepped down from the footpath to cross the road. Is the driver liable

(10 marks)

Answer

Issue Does the pedestrian have a course of action against

driver? Law

Negligence is defined as ‘the breach of a legal duty to take care which results in damages, undesired by the defendant, to the plaintiff’

The ingredients of negligence are: - A legal duty on the part of A towards B to exercise care

in such conduct of A as falls within the scope of the duty Breach of that duty Consequential damage to B

Answer

Law Defences

Volenti Non Fit Injuria (Voluntary Assumption of Risk) Contributory Negligence

S.12 of the Civil Law Act 1956

Answer

Application Does the driver owe pedestrian a duty of care?

The test for the existence of a duty owed to the plaintiff is the ‘neighbour’ principle stated by Lord Atkin in Donoghue v Stevenson, i.e. the foresight of the reasonable man

One therefore asks the question whether the injury to the plaintiff was reasonably foreseeable consequence of the defendant’s acts or omissions

Consider the facts and circumstances of that case It is not required that the plaintiff must be identifiable by the

defendant

Answer

• Application Does the driver owe pedestrian a duty of

care?• OTF – the injury to the pedestrian was reasonably

foreseeable consequence of the driver’s acts or omissions because she consumed their product

• The driver owe a DOC to everyone uses the road

Answer

• Application– Did the driver breach this duty of care?

• Blyth v Birmingham Waterworks Co – reasonable man test

• A reasonable man has been described as ‘the man on the omnibus’.

• In other words, a ‘reasonable man’ means an ordinary man who is not expected to have any particular skill such as that possessed by a surgeon, a lawyer or a plumber unless he is actually one

• The standard of what is ‘reasonable’ is an objective one

Answer

• Application– Did the drive-in fast food restaurant breach

this duty of care?– OTF – reasonable driver – drive carefully

Answer

• Application– Was the pedestrian’s damages remote?

– Pedestrian’s damage must have been caused by the driver’s breach of duty and must not be too remote a consequence of it

– This means that one has to ask whether the breach of duty was the primary cause of the damage

– In The Wagon Mound [1961] A.C. 388, the Privy Council that the foresight of the reasonable man alone can determine responsibility

– OTF – yes. If a driver drives negligently, it is foreseeable that he may injure himself

Answer

• Application• Thus, there is negligence and the driver may be liable• Are there any defences available to the driver?

• Volenti• OTF - no

• Contributory negligence • OTF – yes. The pedestrian contributed to his

own injury by stepping down the footpath• Thus, liability will be divided between the

pedestrian and the driver (s12 Civil Law Act 1956)

Answer

• Conclusion• The pedestrian has a course of action against the

driver• They are liable for negligence• However, they have a defence of contributory

negligence• Thus, the liability will be divided between the

pedestrian and the driver

Question 2

Discuss the remedies that may be claimed in the tort of negligence.

(5 marks)

Answer

5 marks will be awarded for the identification and brief discussion of the correct remedies. The remedies available in tort of negligence are: - Damages

Question 3

Under what circumstances can the defence of ‘contributory negligence’ be used in order to reduce the liability for tort of negligence?

(5 marks)

Answer

5 marks will be awarded for the identification and elaboration of the circumstances. The defence of contributory negligence can be successfully invoked if D can prove that P was also at fault for the negligence.

Question 4

Explain the THREE (3) elements that must be satisfied in order to bring a claim under tort of negligence.

(15 marks)

Answer

Duty of car Breach of that duty Damages

Q & A