Negligence and Volenti Non Fit Injuria

This assignment delves into the legal principles of negligence and volenti non fit injuria. It examines a scenario involving Michelle driving while intoxicated and Rebecca, a passenger, being injured in an accident. The analysis explores whether Michelle can avoid liability under the doctrine of volenti non fit injuria and considers Rebecca's contributory negligence. Relevant case laws and legal principles are discussed to provide a comprehensive understanding of the topic.

Cover page
Student Name
Student ID
Word count
1

Contents
Solution.......................................................................................................................................................3
Issues.......................................................................................................................................................3
Issue 1..................................................................................................................................................3
Rule 1..................................................................................................................................................3
Duty of care.........................................................................................................................................3
Application 1.......................................................................................................................................3
Conclusion 1........................................................................................................................................3
Issue 2..................................................................................................................................................3
Rule 2..................................................................................................................................................3
Breach of duty of care.........................................................................................................................3
Application 2.......................................................................................................................................4
Conclusion 2........................................................................................................................................4
Issue 3..................................................................................................................................................4
Rule 3..................................................................................................................................................4
Resultant damage.................................................................................................................................4
Application 3.......................................................................................................................................4
Conclusion 3........................................................................................................................................4
Issue 4..................................................................................................................................................4
Rule 4..................................................................................................................................................4
Application 4.......................................................................................................................................5
Conclusion 4........................................................................................................................................5
Issue 5..................................................................................................................................................5
Rule 5..................................................................................................................................................5
Application 5.......................................................................................................................................5
Conclusion 5........................................................................................................................................5
Reference List.............................................................................................................................................6
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Solution
Issues
Issue 1
Is there duty of care imposed upon Michelle?
Rule 1
In Negligence a person is said to be liable when it is proved that he had upon him a duty of care
and he breached the duty and due to the said breach, an injury is caused to any third party. So the
main elements of negligence are duty of care, its breach and injury to the third party. (Latimer,
2012)
Donoghue v Stevenson (1932) led to development of law of negligence wherein the three main
elements of negligence was rightly developed by Lord Atkin. Grant v Australian Knitting Mills
(1936) also emphasis that all the essential ingredients must be comply with. (Tomasic et al,
2002)
Duty of care
Duty of care implies the duty of the performer to act in a way so that his acts do not cause
damage to the plaintiff. The duty is towards all such persons who are in proximity of the
performer and are likely to be affected by his acts, thus, the plaintiff must be neighboiur of the
performer. The neighborhood principal implies all persons who are likely to be affected by the
act of the performer directly are his neighbors (Caparo Industries Plc v. Dickman [1990]. Also,
the plaintiffs must be reasonable foreseeable to make him neighbor (Annetts v Australian
Stations Pty Ltd (2002). (UWA, 2017)
Application 1
Michelle and Rebecca being friends drank wine together and Rebecca being aware that Michelle
was too drunk assented to get in car. Though she told Michelle that she wanted to get down but
at last Michelle crashed the car and Rebecca suffered injuries.
It can be clearly assessed that Michelle had duty of care towards passenger, pedestrian etc and
Rebecca (co-passenger) and thus he must drive with all care.
Rebecca is his neighbor as they are in proximate connection and Micelle can reasonably foresee
then any breach of duty will cause harm to her.
Conclusion 1
There is duty of care on Michelle.
Issue 2
Whether there is violation of duty of care by Michelle by not complying the standard of care?
Rule 2
Breach of duty of care
Duty of care is said to be breached when such duty is not followed by the performer. When the
level of care and the type of care that should had been taken is not taken by the performer of the
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act then he is said to have carried breach of duty care under the law of negligence. In Doubleday
& v Kelly [2005] and Drinkwater v Howart [2006] the performer has not acted at the level of
care that is expected from him and which has resulted in causing damage to the plaintiff. (Deakin
et al,, 2003)
Application 2
Michelle breached the duty by driving intoxicated. So, the level of care is not performed by
Michelle. In negligence, the drivers of the vehicle have a duty of care towards other drivers or
cars and passengers so that no injury is caused to them and he should carry out his duty
diligently. If the drivers are drunk then the duty of care is violated by them under the law of
negligence. The level of duty of care even becomes more when a drunken person is driving the
vehicle and is held in Manley v Alexander (2005).
Conclusion 2
So Michelle is in breach of care as the adequate standard is not met by her.
Issue 3
Whether the damages caused by Rebecca results in causation and are not too remote?
Rule 3
Resultant damage
Damage or injury must follow due to the breach of the duty casted upon the performer. It is then
only he can be held liable under the law of negligence. But, if damage is not caused due to
breach and the injury caused is too remote then in such cases the performer cannot be said liable.
To prove damage, it is necessary that there must be presence of causation and the damages are
not too remote to predict (March v Stramare (E & MH) Pty Ltd (1991) and Overseas Tankship
(UK) Ltd v Miller Steamship Co Pty [1966]. (Tomasiac et al, 2002)
Application 3
The breach by Michelle has caused injury to Rebecca which was direct as Michelle can foresee
that any wrongful action of his will cause injury to Rebecca. Also, because of Michelle action
damage is caused to Rebecca who was reasonably foreseeable.
Conclusion 3
Thus, there is presence of reasonably and causation resulting in causing damage to Rebecca.
Issue 4
Is Michelle can protect him under contributory negligence?
Rule 4
When the inured is negligent along with the performer then the liability of the performer is
apportioned accordingly and the inured can only claim to the extent of injury caused to him by
the negligence of the wrongdoer and will have to bear the cost of injury caused to him because of
his own fault and is held in Dann v Hamilton (1939). (Chitty on Contracts, 2004)
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Application 4
Michelle can take plea of contributory negligence as Rebecca in spite of knowing the fact that
Michelle was drunk took ride with Michelle and thus Michelle may succeed in his plea of volenti
non fir injuria
Conclusion 4
Thus, the liability of Michelle can be avoided as the risk assume by Rebecca was voluntarily.
Issue 5
Is Michelle can protect him under volenti non fit injuria?
Rule 5
In case the injured is aware that injury might sustain to him but he himself assents to the danger,
in such a case, the wrongdoer is not liable to the injured under the rule of volenti non fit injuria.
It implies that if a person himself assents to the danger then he cannot later on claim for the
injury sustained and is held in Wentworth Shire Council v Berryman & Anor (2002).
In Allen v Chadwick (2015) it was stated that when a passenger himself assents to sit in the car of
an intoxicated driver then such person is held contributory negligent for the injury caused to him.
Application 5
When Rebecca sat in the car of Michelle than she has also not performed her duty of care as she
is aware that by sitting in the cart she is assuming is as Michelle is drunk. Thus, there is
contributory negligence on the part of Rebecca.
Conclusion 5
Rebecca will definitely get the compensation as Michelle is negligent in his actions but the same
is reduced proportionally to the extend she herself is negligent.
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Reference List
Books/Articles/Journals
Chitty on Contracts (2004) Sweet & Maxwell. 29th Edition.
Deakin et al, (2003). Markesinis and Deakin's Tort Law. Oxford University Press.
Latimer, P (2012) Australian business law2012. CCH Australia Limited, 31st edition.
Tomasiac et al, (2002) Corporations Law in Australia, Federation Press.
Case laws
Annetts v Australian Stations Pty Ltd (2002).
Allen v Chadwick (2015).
Caparo Industries Plc v. Dickman [1990].
Dann v Hamilton (1939).
Donoghue v Stevenson (1932).
Doubleday & v Kelly [2005].
Drinkwater v Howart [2006].
March v Stramare (E & MH) Pty Ltd (1991).
Manley v Alexander (2005).
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1966].
Wentworth Shire Council v Berryman & Anor (2002).
Online Material
UWA (2017) Example of the Development of Court Made Law (Online). Available at:
http://www.law.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development-of-
law-negligence.pdf. Accessed on 15th September 2017.
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