BUS107 Commercial Law Case Study

This case study analyzes the legal issues surrounding contributory negligence in the context of a car accident involving Rebecca and Michelle. It discusses the breach of duty of care, the injuries sustained, and the potential defenses available to Michelle, including contributory negligence and volunt...Read More

BUS107 Commercial Law T2 2017 Assignment
Advise For Rebecca
Issue: After going through the facts that have been provided in this question, the issue is that
Michelle and Rebecca have gone to see a act of Oprah Winfrey. As there was matter related with
ticketing, there was a delay in the performance. During this time, both of them have some wine
at the bar while they were waiting for the start of the performance. After the show had ended,
Rebecca knew very well that Michelle was quite under the influence. However, she made a
decision to ride with Michelle in her car. But very soon, Rebecca realized that Michelle had been
driving unsafely. As a result, she wanted to alight from the car and therefore asked Michelle to
stop the car. However, Michelle kept on driving and very soon the car met with an accident. As a
result of this accident, Rebecca had to face serious injuries as well as a broken leg. Under these
circumstances, Rebecca seeks advised if can take legal action against Michelle and also what
will be the effect of the defense of contributory negligence, if pleaded by Michelle.
The other issues are:-
Is there a breach of duty of care by Michelle;
The injuries suffered by Rebecca were caused as a result of Michelle's actions;
Can Michelle rely on the defense of contributory negligence?
Can Michelle rely on the defense of voluntary assumption of risk?
Rule: Under the law of tort, contributory negligence is the behavior of the claimant due to which
some contribution has been made in the injuries suffered by the claimant. Due to the reason that

the claimant also failed to fulfill the standard of care that would have been fulfilled by any other
reasonable individual in such circumstances in order to avoid the injury or the loss that had been
caused to the claimant. Therefore, if such circumstances are present, the party that has been
accused of negligence can rely on the defense of contributory negligence by the other party
(Palmer and Davies, 1980).
But in such cases it is worth mentioning that the respondent can rely on the defense of
contributory negligence only if it can be established by the defendant that the claimant was also
at fault in some way (Legg, 1999). Similarly, it also needs to be established that such fault had
contributed in part, in causing the injury to the claimant. Another requirement of the law for this
purpose is that it should be established that in a particular case, it will be just and equitable to
decrease the damages due to the reason that the claimant was also at fault (Seddon, 1999).
Hence, in such cases there is a responsibility imposed on the defendant to establish that some
contribution has been made by the claimant in negligence (Lockhart, 1989). A relevant example
in this regard is that of Dann v Hamilton (1939). In this case, as it had been accepted by the
claimant that was offered by the defendant even if the claimant was well aware that the
defendant was heavily intoxicated at the time. While deciding the case, it was mentioned by the
court that defense of volenti non fit injuria is not available in such cases. However, the case
would have been different if there were some extreme circumstances present. For example, if the
drunkenness of the driver of the motor vehicle would have been obvious and therefore it can be
concluded that an evident and obvious risk was present, which had been knowingly accepted by
the other party.
Another case that is relevant on the basis of the facts of this case is that of Owens v Brimmell
(1977). Both the driver of the car and the passenger had consumed some wine. While returning,

the driver lost control of the vehicle and the car collided with a lamp post. It was held by the
Court of Appeal in this case that there was a contribution in negligence by the passenger also in
this case. The reason given by the court that it was decided by the passenger to ride with the
defendant even after knowing very well that the driver had taken by and large quantity and
therefore it will be very difficult for the defendant to drive safely. Therefore, the court concluded
that in this case, the passenger was also liable for contributed in negligence. The reason was that
the claimant was well aware that while returning, the companion will be going to drive the car
however. The passenger continued to accompany the defendant in drinking excessive wine. As a
result in such cases, even if it has been said by the court that the defense of volenti non fit injuria
is not available, still the damages can be reduced on account of the fact that the claimant has also
contributed in negligence (Mason, 1987).
Another important case is that of Astley v Austrust Limited (1999) , where the court had to
consider if the damages can be reduced as a result of the contribution of negligence by the
claimant.
Application: When the above-mentioned legal position is applied to the facts of this case, it can
be said that the beta and Michelle have taken wine before the show. However, when they were
coming back from the show, Rebecca was well aware of the fact that Michelle had consumed
wine excessively and it will not be safe for her to drive the car. Still, Rebecca decided to ride
with the car driven by Michelle. Moreover, when both of them were consuming wine, Rebecca
was well aware that while returning, the car will be driven by Michelle. After writing for some
time in the car, Rebecca became sure that Michelle cannot drive safely. As a result, she asked
Michelle to let her out of the car. Still, Michelle continued driving and after some time the car
crashed. As a result, Rebecca injured her leg and got other serious injuries. On the basis of the

above-mentioned legal position, it can be said that Rebecca got injuries due to the negligence of
Michelle as she was driving car after consuming a lot of wine. Michelle also had a duty of care
towards Rebecca and this duty has been breached. But it is worth mentioning that while
accepting to ride in the car driven by Michelle, Rebecca knew very well that Michelle was highly
intoxicated.
Conclusion: As a result, it can be concluded in this case, Rebecca has also made a contribution
in negligence for the injuries suffered by her. Therefore the amount of damages can be reduced.
It can also be concluded that:-
Michelle had a duty of care towards Rebecca.
There was a breach of duty of care by Michelle.
The injuries suffered by Rebecca were caused due to the actions of Michelle and were not too
remote.
Michelle can rely on the defense of contributed negligence.
However, Michelle cannot use the defense of voluntary assumption of risk.

References
Legg, M. (1999) 'The High Court's Decision on Contractual Liability and Contributory
Negligence in Asrtey vAustrustLtd 17 Aust Bar Rev 262
Lockhart C. (1989) 'Contributory Negligence as a Defence to a Claim for Breach of Contract:
Arthur Young & Co I, WA Chip &Pulp Co PtyLtd' 19 UWAL Rev 411
Mason, K. (1987) 'Contract and Tort: Looking Across the Boundary from the Side of Contract'
61 ALJ 228
Palmer, N.E. and Davies P.J. (1980) 'Contributory Negligence and Breach of Contract: English
and Australasian Attitudes Compared' 29 Int& Comp LQ 415
Seddon, N. (1999) 'Contract Remcdics where both Parties are at Fault' Remedies Teachers
Conference (Melbourne) 7
Case Law
Astley v Austrust Limited, 1999, 197 CLR 1
Dann v Hamilton [1939] 1 KB 509
Owens v Brimmell[1977] 1 QB 859