Tort Laws Essay

This essay addresses a tort law case involving Rebecca and Michelle. It analyzes whether Michelle owed Rebecca a duty of care, whether that duty was breached, and whether Rebecca's injuries were causally linked to Michelle's actions. The essay also examines the potential applicability of contributory negligence and voluntary assumption of risk as defenses. The analysis draws upon several key cases, including Donoghue v Stevenson, Caparo Industries plc v Dickman, Vaughan v Menlove, Barnett v Chelsea & Kensington Hospital, and Jackson v McDonald's Australia Ltd, to support its conclusions. The essay concludes by determining Michelle's liability and the potential impact of Rebecca's actions on the outcome.

Running head: TORT LAWS
Tort Laws
Name of the student
Name of the university
Author note

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Issue 1
The question in this issue is to determine whether Rebecca can claim duty of care against
Michelle
Rule
The concept in relation to the duty of care came up from the famous ginger beer incident which
took place in England. The case is cited as Donoghue v Stevenson1. In this case even though the
consumer of the Ginger beer had no direct contactual relationship with the manufacturer of the
beverage the code provided that the manufacture have a duty of care towards the consumer as it
was reasonably possible that the actions of the manufacturer could cause an injury to the
consumer.
The same concept was used in Australia in the famous case of Australian Knitting Mills, Ld. v.
Grant2 in this case it was found that the manufacturers of a certain product reliable 2 hour duty
do the consumers even though they did not have a direct contractual relationship with them.
In the case of Caparo Industries pIc v Dickman3 it was provided by the code that a duty of
care exist when home calls to another person is reasonably foreseeable. The test of determining
duty of care provided through this case is known as the caparo test.
Application
In this case it is clear that Michelle has a duty of care towards Rebecca as she is the driver and it
is evident that if she does not drive with proper care her actions can cause injury to the co-
1 1932 AC 522
2 50 C. L. R. 387
3 [1990] 2 AC 605

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passengers in the car. Therefore as Rebecca was the co-passenger it can be said according to the
above discuss cases that a duty of care exists between them.
Conclusion
Michelle Owes duty of care to Rebecca.
Issue 2
Whether the existing YouTube care has been reached by Michelle or not.
Law
In the case of Vaughan v Menlove 4 it was ruled by the court that whether a person has violated
the existing duty of care or not can only be found out by placing another person who has a
reasonable mind in the same situation which the defendant was in while the duty was allegedly
breached and then observe what a reasonable person must have done in such situation to avoid
injury. In case the reasonable person would have taken extra precautions to mitigate the risk of
injury it would be determined by the court that the defendant is liable for the breach.
Application
In this case a reasonable person if placed in the same circumstances of Rebecca and Michelle
would have realized that it is not safe to drive a car in an intoxicated state and it is most likely to
cause an accident. As Michelle did not act like a reasonable person it can be said that the duty of
care was violated.
Conclusion
4 (1837) 3 Bing. N.C. 467

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The duty of care was violated by Michelle
Issue 3
The issue is to determine whether injury suffered by Rebecca was caused by the actions of
Michelle
Rule
Factual Causation is required to establish any claim for negligence has provided by the Civil
liability Act 2002 NSW in section
In case of physical injury most of the times the famous but for test is applied to find out
whether the injury has been caused by the actions of the defendant or not. The test was provided
in the case of Barnett v Chelsea & Kensington Hospital5. In this case the patient would have
died even if the doctor have not conducted negligence therefore the Court established at a claim
for negligence cannot be established as the injury was not a direct result of the negligent action.
Application
Applying the “but for” test in the case of Rebecca and Michelle it can easily be determined that if
Michelle was not drunk and would have listened to Rebecca to let her get out of the car
dangerous to Rebecca would not have been called that she would have been out of the car when
the car crashed.
Conclusion
Therefore it can be stated that as no injury would have been caused if Michelle was not negligent
her actions are the actual cause of Rebecca's cause injury.
5 [1969] 1 QB 428

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Issue 4
The issue in this section is to find out whether the concept of contributory negligence is
applicable in the case of Rebecca and Michelle
Rule
In the case of Jackson v McDonald's Australia Ltd6 it was stated by the judge that if a
person is injured by the actions of another but his contribution to such injury was also present
then a claim of contributory negligence can be established.
In such cases the compensation which is demanded by the injured party is adjusted based
on the contribution which the injured party himself or herself made in relation to the injury. The
contribution to injury is found out by the application of the same principles which are used to
identify negligence.
Application
Rebecca had the knowledge that Michelle was drunk. Even after knowing the position of
Michelle she agreed to take a ride along with her in the car. If we place a reasonable person in
place of Michelle in the similar situation the person would not have taken ride with the drunk or
intoxicated person. Therefore it can be said that Rebecca has contributed to the injury.
Conclusion
Rebecca is liable for contributory negligence
Issue 5
6 [2014] NSWCA 162.

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Weather the defence of voluntary assumption of Risk applicable in this case
Rule
Voluntary assumption of risk as stated by the Civil liability Act 2002 NSW is a situation where a
reasonable person can easily assume that a risk exist in a certain activity. Even if it is found that
the probability of the risk offering is very low the voluntary assumption of risk is applicable. The
concept was also discussed in Morris v Murray7.
Application
It is clear that any reasonable person would know taking ride with an intoxicated person is very
risky even if it is less probable to result in an accident. Therefore it can be stated that Michelle
can rely on the defense of voluntary assumption of risk by Rebecca.
Conclusion
The defense of voluntary assumption of this can be used by Michelle
7 [1990] 3 All ER 801

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Bibliography
Australian Knitting Mills, Ld. v. Grant 50 C. L. R. 387
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Civil Liability Act 2002 (NSW)
Donoghue v Stevenson 1932 AC 522
Jackson v McDonald's Australia Ltd [2014] NSWCA 162