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Tort Of Negligence Legal Service

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Tort Of Negligence Legal Service

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Two friends, Rebecca and Michelle, visited a bar and had wine. While returning home, the car was being driven by Michelle who was in a drunken state. She drove quite dangerously, and though Rebecca gave several warnings, the car was crashed, and Rebecca thus sustained several injuries. She thus wanted to sue Michelle for negligence and in this assignment, this aspect shall be discussed.
The issues that arise in the given matter can be enumerated as under:
Whether the given situation satisfies all the requirements under the tort of negligence and as such whether Michelle is liable in the matter?
Whether Rebecca is liable for contributory negligence in the given scenario?
As defined in the case of Gnych v Polish Club Limited, [2015], a tort of negligence is a failure on the part of the defendant to exercise a duty of care that he was supposed to take. Any other reasonable and prudent person would have taken in similar circumstances that ultimately results in some losses to the plaintiff. This failure of duty of care in most cases is the causal factor for the damage that has been incurred by the plaintiff.
Hence, according to the above definition, it can be said that there are four elements that should be satisfied to substantiate a claim of negligence (Claimsjournal.com, 2016). The defendant should have a duty of care towards the plaintiff; the defendant should breach this duty of care; the breach of the duty of care should result in some damage to the plaintiff and the damage that is caused should be a reasonably foreseeable one and not some remote cause (Oberdiek, 2013). 
Then, there are certain defenses that can be taken by a defendant when an accusation for being negligent is brought against him (Bolton v Stone, [1951]). The Civil Liability Act also ratifies these defenses. In case, contributory negligence is proved in any instance, the liability of the defendant comes down substantially. This has been specifically provided in Section 23 of the Act (Fletcher, 2008).
To prove contributory negligence in any matter, intoxication is one of the valid grounds. Under Section 5 of the Civil Liability Act, intoxication has been laid down as a ground for establishing contributory negligence (Salmond, 2011). In such instances, the damages that are claimed can also be diminished by 100%. However, the adjudication is done by the Courts, and the decision is taken on the merits and facts of the case (Charlesworth and Percy, 2012). Two stages are involved in this process. The first shows the negligence done by the plaintiff and the second assigns a percentile issue on the same (Marcolongo v Chen, [2011]).
Section 16 and 17 of the Civil Liability Act also need to be mentioned here. These deal with obvious risks and voluntary assumptions of risks. A person can say that he had not contributed in the negligence if he can without any doubts prove before the court that he was unaware of the risk present in the matter (Hobartlegal.org.au, 2016). Secondly, in case a person understands that there is some amount of risk associated with any incident, then he should look at it from the view of a reasonably prudent person. The mere presence of the knowledge of the risk is enough ground to substantiate that the plaintiff himself, who is responsible for the damage, and the defendant does not hold any liability in the matter (Cooke, 2007).
These rules shall now be applied to the given factual background. Both Michelle and Rebecca were drunk in the situation. The wine was consumed by the in their wish. Since both of them were intoxicated, it can be said that driving on the part of either of them would have qualified to be a negligent act. In spite of knowing their intoxicated conditions, they chose to drive back home and thus, on the very first instance, negligence is proved beyond doubts in the matter. After that, it was realized by Rebecca that the condition of Michelle was not proper to let her drive and even then she allowed her to remain seated on the driver’s seat. She also realized that she was driving dangerously and thus it can be said beyond any doubts that Rebecca was well aware of the drunken state of Michelle. Hence, it can be said that it would have been justified if Rebecca would not have accepted the offer of Michelle to drive her back home. However, Rebecca decided to choose on otherwise grounds and thus contribution of Rebecca towards negligence is established without any reasonable doubts.
This does not, however, absolve Michelle from any liability. She had a duty of care towards Rebecca and that she indeed breached the duty of care. A reasonably prudent person would not have made this breach in that place. The damages faced by Rebecca are attributable to the negligence of Michelle, and there is no remoteness to the damage in the matter. However, at the same time, it is also argued that Rebecca had the liability of contributory negligence. The risk that is the cause of the damage was pretty much foreseeable and obvious, and the voluntary acceptance of that risk by Rebecca proves her contribution to the negligence. Any other prudent person would have technically avoided that risk. The car after that met with the accident, and this resulted in injuries sustained by Rebecca and also gave her a broken leg. Thus, in these conditions, even if Rebecca accuses Michelle of negligence, the same cannot be awarded because of her liability in contributory negligence.
Thus, it can be concluded saying that:

Michelle is, in fact, liable for negligence, and a suit can be maintained against her;
Though Michelle has a liability, Rebecca cannot succeed in the claim because of her contributory negligence in the matter.

Bolton v Stone [1951] AC p.850.
Charlesworth, J. and Percy, R. (2012). Charlesworth & Percy on negligence. 9th ed. London: Sweet & Maxwell.
Claimsjournal.com. (2016). [online] Available at: https://www.claimsjournal.com/news/national/2014/01/02/242115.htm [Accessed 5 Sep. 2016].
Cooke, P. (2007). Law of tort. Harlow: Longman.
Fletcher, G. (2008). Tort liability for human rights abuses. Oxford: Hart Pub.
Gnych v Polish Club Limited [2015] HCA p.23.
Hobartlegal.org.au. (2016). Defences to the Tort of Negligence | Hobart Community Legal Service. [online] Available at: https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/defences-tort-negligence [Accessed 5 Sep. 2016].
Marcolongo v Chen [2011] HCA p.3.
Oberdiek, J. (2013). Philosophical foundations of the law of torts.
Salmond, J. (2011). The law of torts. London: Sweet & Maxwell.

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