Negligence and Duty of Care in a Car Accident

This assignment analyzes a car accident case where Rebecca, driving under the influence, caused an accident injuring Michelle. Students must determine if Rebecca owed Michelle a duty of care, breached that duty, and if Michelle's actions contributed to the accident. The analysis should consider legal concepts like causation, assumption of risk, and defenses against negligence claims.

Business Law 1
THE TORT OF NEGLIGENCE
Class (Course)
Professor (Tutor)
School (University)
Location
The Date

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The Tort of Negligence
The tort of negligence deals with issues where people involve themselves in conducts that
create possibilities of unreasonable risks of harm to others. Therefore, the basis in which the
affected person can prove liabilities for negligent actions from another person involves
demonstrating a failure for that person to provide reasonable care. In essence, reasonable care
requires reasonable circumstances under which the guilty party would have provided the safety
of the claimant or the safety of the claimant’s property. While the court awards compensation to
damaged party, the court still requires people take reasonable measures to protect themselves
rather than exposing themselves from danger. So if someone unreasonably exposes himself to
danger, the accused party can raise a defense in contributory negligence or in the concept of
assumption of risk. The following is a scenario where this concept would be clearly illustrated.
Case Scenario: Michelle v. Rebecca
Michel knew Rebecca was drunk to drive, but Michell let Rebecca drive home anyway.
Rebecca caused an accident where Michelle suffered some injuries. Michel also had at some
point requested to get out of the car. Now Michell wants to sue for negligence.
Issue
This case is a matter of weighing between the tort of negligence where the injured party
willingly decided to take the risk. In particular, the issue is that of weighing between negligence
and contributory negligence.
Rules
The court will only find the party guilty of acting negligently if that party did not employ
reasonable care given within that context (Steele, 2017). Moreover, the court applies a general
test that measures whether it is true that the party indeed is guilty for negligent. The first step is a

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determination as to whether a duty of care existed on the side of the defendant regarding
protecting the claimant. Remember, the said legal duty which the defendant should have
exercised should balance with the established standard of conducts in the field of the defendant.
In summary, this part requires answering the following questions. Are the claimed damages
reasonably foreseeable? If yes, (Iacobucci and Trebilcock, 2016) states that the next step is to
look at the relationship between the claimant and the defendant and find whether the relationship
is satisfactory regarding the proximity for imposing a duty to care to the defendant. The last
question is finding whether it is fair and reasonable to impose that duty of care to the defendant
given the available circumstances.
After establishing that there was a duty owed, then the next step is to find out whether the
defendant breached the foreseeable duty (Twomey et al., 2011). This one is simple as it requires
an objective test. It is a matter of looking at whether a reasonable person given the position of the
defendant would have employed the similar actions, or the reasonable person would have acted
differently to save the claimant. The test must look at the skills which the defendant claimed that
he owns and balancing them with a reasonable man having similar skills.
The third component would require the claimant to exhibit the fact that the defendant
breached the duty, and the breach caused the claimed loss. Here it is a matter of two factors.
Actual link between the defendant action and the occurrence of the damages. Simply called the
‘but for’ test (Varuhas, 2014). Secondly, the question whether the damages of the losses
reasonably foreseeable also comes into place (Sohn, D. H., 2013). If they are too remote, the case
will fail.
Despite having all these answers as “Yes,” there are still possibilities of the claim failing
through assumption of risk or contributory negligence. The assumption of risk happens when the

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claimant proceeds to face the danger despite having all the knowledge that such risks exist
(Miller and Cross, 2010). When the circumstances become so reasonable for the claimant to face
the risk, such becomes reasonable assumption of risk, and it is no defense to the defendant
(Kubasek et al., 2016). When the claimant unreasonably decides to face the risk, such becomes
contributory negligence, and it is one defense that the defendant can raise to relieve himself from
the claim.
To restate the same, contributory negligence is a defense in which the defendant can
bring proving the failures of the claimant to act in a reasonable way in which he would have
protected himself from danger. However, this is just a partial defense. Therefore, it means the
court will determine the extent of the blame brought forth by the claimant.
Application
The establishment of a duty of care as the guide to solving issues of the tort of negligence
started with the judgment of (Donoghue v Stevenson, 1932). The case arose from a café where
the claimant’s beer contained a decomposed snail which appeared from the bottle after pouring
the remaining beer into the glass. From this incidence, the claimant alleged that she suffered
damages amounting to £500 upon which the defendant (manufacturer) was found liable. This
case established what came to be the ‘neighbor’s principle.’
Even though, the best way to identify a duty of care emerged in 1980 with the case of
(Caparo v Dickman, 1990). Dickman has sued Caparo for misstating an audit for an account that
Dickman relied on to offer credit. Instead of showing a loss, Caparo gave an audit that
mistakenly showed a profit. Nevertheless, the court established that Caparo owed no duty to the
public meaning he was not liable for the negligent misstatement.

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Like stated above, the claimant must prove that duty was breached after establishing that
duty in stage one. An illustration of this is the case of (Nettleship v Weston, 1971). This case
involved a third lesson driver(Nettleship) who caused an accident injuring his instructor
(Weston). The court found the student liable despite being a learner. The court looked at the
objective test where the student was supposed to provide a care similar to which a reasonable
person in a third lesson student would have given.
The last element is the proof that the damages reasonably and foreseeably resulted from
the breach of duty. Like explained above, it is more of creating a link between the damages and
the defendant’s breach. A suitable illustration is a case of (Barnett v Chelsea & Kensington
Hospital Management Committee,1969). The parties to this case were a widow who brought an
action against a hospital for the death of the husband. The widow claimed that the hospital
caused the death of the husband when they failed to examine her deceased husband. However,
the husband complications had resulted from the deadly arsenic poison which would have killed
him anyway. The court did find the hospital in breach of duty, but the death of the husband was
not from the breach.
Nevertheless, contributory negligence can significantly and negatively affect a claim for
negligence. The defendant only needs to prove that the claimant walked or proceeded to the
danger despite having all the knowledge. An example of this situation is the case of (Froom v
Butcher, 1976). In this case, the claimant had brought a claim for negligence due to injuries
caused by an accident where the defendant was the driver. Unfortunately, the court found that the
claimant had not taken measures of wearing a seatbelt. The court felt that the damages would
have been less had the claimant had taken such steps. The judge said that the law expects a
prudent man to take steps that can shield him from the possible risks of the danger posed by the

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other person. Despite that, contributory negligent did not relieve the defendant all the damages,
but he managed to escape a cost of 20 percent allowing the claimant to receive a compensation
of 80 percent.
Conclusion
Having all these facts, it is true that Rebecca owed Michelle a duty of care. It is also true
that an objective test would find that Rebecca breached her duty of care when she negligently
caused the accident. More than that, it is reasonable, and there is a direct link between Michelle’s
damages and Rebecca’s negligent actions. From these facts, the court will definitely find
Rebecca liable for causing Michelle’s injuries. However, if Rebecca would raise a defense under
contributory negligence, Michelle may not get a 100 percent award as the compensation of the
damages. With this, Rebecca’s argument would require her to prove that Michelle knew that
Rebecca was drunk. Then to defeat the claim for the reasonable assumption of risk, Rebecca
would need to provide the court with other rational choices that Michelle had apart from taking
the risk. There is also need to recognize that Michelle tried to get out of the car when she noticed
the risks posed by Rebecca’s drunkenness. However, the court may dismiss the argument
because it was too late.
To sum it up, the court will always want to protect the welfare of the society, but it will
never stop people from trading their rights in exchange for other things that they may think are
valuable at that moment. Therefore, the court will always take into consideration factors like
contributory negligence, the assumption of risk, exclusion clauses, consents, and illegality
among other defenses for negligence.

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Reference List
Twomey, D., Jennings, M., Fox, I. and Anderson, R. (2011). Anderson's business law and the
legal environment. 21st ed. Mason, Ohio: South-Western Cengage Learning.
Steele, J. (2017). Tort law. 4rth ed. OUP Oxford.
Miller, R. and Cross, F. (2010). The legal environment today. 16th ed. Mason, OH: South-
Western Cengage Learning.
Kubasek, N., Browne, M., Dhooge, L., Herron, D. and Barkacs, L. (2016). Dynamic business
law. 3rd ed. New York. NY: McGraw-Hill Education.
Iacobucci, E. and Trebilcock, M. (2016). An economic analysis of waiver of tort in negligence
actions. University of Toronto Law Journal, 66(2)
http://www.utpjournals.press/doi/full/10.3138/UTLJ.3155
Varuhas, J. (2014). The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and
Damages. Oxford Journal of Legal Studies, 34(2), pp.253-293.
http://dx.doi.org/10.1093/ojls/gqt036
Sohn, D. H. (2013). Negligence, genuine error, and litigation. International Journal of General
Medicine, 6, 49–56. http://doi.org/10.2147/IJGM.S24256
Cases
Donoghue v Stevenson [1932] AC 562
Caparo v Dickman [1990] UKHL 2
Nettleship v Weston [1971] 2 QB 691
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Froom v Butcher [1976] 1 QB 286