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Tort Law : Legal Service Commission

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Tort Law : Legal Service Commission

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Describe about the Tort Law for Legal Service Commission.

The given case is about two friends who had gone to attend a performance called as “An Evening with Oprah” with Oprah Winfrey. There was some ticketing issue with the box office and so the show was delayed by an hour. So to pass the time both of them went to a nearby bar and drank wine. But after the performance when they were going back home, Michelle was too drunk. Rebecca knew that Michelle was too drunk and cannot drive home. But still she let him drive and at the end he crashed the car. Due to the crash Rebecca was injured and she got some serious injuries including her broken leg. Now Rebecca wants to sue Michelle for her negligence.
Negligence Tort is the most common type of Tort which is not deliverable actions but instead is present when an individual fails to act as a reasonable person to someone whom he owes a duty. To identify negligence one needs to satisfy and find the answers of the below four questions: (Legal Service Commission, 2016)

Has the plaintiff suffered from any injury or damage?
Injury or damage caused to the plaintiff was mainly due to the breach of duty of care?
Has the defendant breached the duty of care?
Has the defendant owed any duty of care to the plaintiff?

If plaintiff wants to prove that the defendant was negligent in his duties then he has to prove all the questions mentioned above. If any of the questions is not present then negligence cannot be proved.
Duty of Care: It is the responsibility of a person to perform his duty with reasonable care. If the risk of injury was reasonably foreseeable then the action will fail to meet the standard of care and breach of duty of care to ones neighbour. (Thomson Reutors, 2016)
Breach of Duty of Care: a defendant would be held liable for duty if he is negligent in performing the duty which he owes to plaintiff. He breaches such a duty when he fails to exercise reasonable care in fulfilling the duty. Whether defendant has breached his duty or not will be decided by the jury. (David G. Owen, 2016)
Causation: the losses which the plaintiff has suffered must be caused by the negligence act of the defendant. These losses need to be recoverable from the defendant. Plaintiff needs to prove that harm would not have occurred if the defendant was not negligent. He also needs to prove that defendant’s breach of duty has caused the harm. (Rottenstein Law Group, 2016)
Contributory negligence:  if the plaintiff is also careless about his own safety then in such situations court will apportion the negligence between the defendant and the plaintiff. Same was seen in the case of Imbree v McNeilly. Suppose if a person was careless in crossing the road and was hit by a car being driven carelessly then this would be regarded as his own fault since he was negligent. (Laws, 2016)
Harm: it is a consequence of financial loss, bodily injury which is sustained from the breach of duty of care thereby enables the victim to recover appropriate damages. (Inc., 2016)
the provisions of Tort law of Negligence is applied in this case. How these provisions are applied is explained below in detail:
Duty of Care: in the given case both Rebecca and Michelle were completely drunk but Rebecca was too drunk that she couldn’t even drive the car properly. Rebecca was aware about this situation. Even though Michelle was drunk, she was driving the car. So now it was her responsibility to drove Rebecca home safely. She had to perform the duty of care in this scenario. The case is similar to the case of Klein v SBD Services Pty Ltd (2013).
Breach of Duty of Care:
Michelle had crashed the car due to which Rebecca was severally injured. She had injuries on her leg as well. Now since Michelle was driving the car, it was her responsibility to drive the car safely. But unfortunately she was so drunk that she had crashed the car. Rebecca was severally injured after the crash. This clearly shows that she had breached the duty of care. If she was drunk then she shouldn’t have driven the car. Hence Michelle had failed to exercise reasonable care in fulfilling the duty.
to prove that Michelle was negligent on her side Rebecca has to prove that she was negligent. Rebecca injured her leg very badly and now she had to spend money to treat it. The losses which Rebecca had to bare were only because of the negligence act of Michelle. If Michelle was careful while driving then this incident wouldn’t have occurred. This clearly shows that since Michelle breached her duty of care Rebecca was very badly injured. This incident could have been avoided if both were travelling by cab instead of driving.
Contributory Negligence:
this would be considered only when the plaintiff himself was negligent about his own safety. In the current scenario Rebecca and Michelle both were drunk after the performance. Rebecca knew that Michelle was drunk and it would be difficult for her to drive the car, but still she didn’t tell anything to her. This clearly shows that Rebecca herself was negligent about her own safety. If she was careful about her own safety then she should have stopped Michelle from driving the car. But unfortunately she allowed Michelle to drive the car and she had gone along with her. This shows that both Rebecca and Michelle were negligent in this case.
The car crashed, Rebecca got injured and to treat it she had to spend money. This was the harm provided by Michelle to Rebecca.
In her defence Michelle can clearly say that Rebecca too was negligent about her own safety because in spite of knowing that Michelle was drunk, she allowed her to drive the car.
On the basis of the Provisions of Tort Negligence it is concluded that both Rebecca and Michelle was negligent in this case and so Rebecca won’t be able to recover her losses from Michelle.
David G. Owen, 2016. Hofstra Law Review. [Online] Available at: https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v35n04_i01.pdf [Accessed 6th September 2016].
Inc., H. C. L. S., 2016. Negligence and the Duty of Care. [Online] Available at: https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/negligence-and-duty-care [Accessed 6th September 2016].
Laws, 2016. CONTRIBUTORY NEGLIGENCE. [Online] Available at: https://negligence.laws.com/contributory-negligence [Accessed 6th September 2016].
Legal Service Commission, 2016. lawhandbook.sa.gov.au. [Online] Available at: https://www.lawhandbook.sa.gov.au/ch29s05s01.php [Accessed 6th September 2016].
Rottenstein Law Group, 2016. What is “causation”?. [Online] Available at: https://www.rotlaw.com/legal-library/what-is-causation/ [Accessed 6th September 2016].
Thomson Reutors, 2016. Elements of a Negligence Case. [Online] Available at: https://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html [Accessed 6th September 2016].

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