Title: LLB (Hons) Level 5 Law of Torts Coursework
After drinking heavily at Neville’s select dinner party, Scholes got into his car (which was uninsured) with his friend O’Shea, who had also been drinking. On their way back to town, Scholes ran down and seriously injured Giggs, a pedestrian on a zebra crossing. The car then spun out of control and crashed into a lamp standard, injuring both Scholes and O’Shea. O’Shea was not wearing a seat belt. Neville knew that Scholes had driven to Neville’s country house, though he had made no effort to stop Scholes drinking excessively while there or to prevent him driving home at the end of the evening. Advise the pedestrian, Giggs, and the passenger, O’Shea who if anybody may be liable and all rights they may have to compensation for their injuries.
An action in negligence, derived from the law of tort, is compromised of five constituent parts. It is necessary to establish a case for each element before a conclusion can be drawn as to primary liability and other factors may subsequently intervene to adjust that finding. For the sake of clarity and brevity each specified party will be advised separately in the following opinion.
Advice to Giggs
First it is necessary to establish that Scholes owes a legally recognised duty of care to Giggs. Second it is necessary to show a breach of that particular duty and third that damage has been sustained. Fourth, it must be established that the damage suffered was incurred as a direct causal consequence of the breach, and finally it must be demonstrated that the damage was reasonably foreseeable in the circumstances – ie. not excluded on grounds of being too remote. Actions in negligence demand the satisfaction of each and every point described above. Each of the foregoing criteria are intrinsic and essential elements of the case, if just one fails to be met then the entire claim will fall, no matter how good or compelling the evidence is that the other four conditions are borne out.
The scope of the duty of care in negligence was determined by Lord Atkins in Donoghue v Stephenson. He found:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.”
Applying this formula to the facts before us it is an easy step to infer that Giggs, as a pedestrian using a road being travelled along by Scholes, would be considered a neighbour of Scholes in the eyes of the law and therefore that he was owed a duty of care by Scholes. It would be hard to argue that pedestrians would not be closely and directly affected by the actions of passing motorists. We therefore satisfy the first element necessary to establish liability in negligence.
Breach of the duty of care was probably best conceptualised and summarised in Blyth v Birmingham Waterworks where Baron Alderson stated that:
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.”
A calculus of risk analysis can be applied in the appraisal of this scenario. This style of analysis balances the risk (Bolton v Stone ) and likely severity of harm (Paris v Stepney Borough Council ) that may be sustained against the cost of taking precautions (Latimer v AEC )and any other prevailing factors that might serve to justify the risk taken (Watt v Hertfordshire County Council ). Here, there is a clear risk of drink driving and the severity of harm likely to have been suffered if the risk manifested itself is very high – drunken automobile accidents are seldom trivial. Weighed against that, the costs of taking precautions (ie. not driving) would have been zero to minimal. Moreover, there is no socially objective justification or excuse for the behaviour and thus in the absence of further information it seems that the scales definitely fall towards a compelling finding of liability.
Over and above the foregoing, it is clear from the brief that Giggs was on a pedestrian crossing at the moment he was hit by Scholes. Inevitably, this can only heighten the responsibility owed by Scholes to drive cautiously. On the facts therefore it is clear that Scholes owes Giggs a duty of care in negligence and that he was in breach of his duty by driving in the manner that he did.
That damage has been suffered is clear from the facts. Giggs has sustained serious (if unspecified) injuries as a consequence of being run over by Scholes. It is submitted that this damage whatever its particulars, will inevitably be of a kind recoverable under the tort of negligence.
On the facts it is submitted that causation is also a relatively easy matter to establish. The chain of causality from breach to damage seems both uncomplicated and cogent. Giggs has crossed a road using a pedestrian crossing and been run over by a drunk driver suffering serious injury as a direct and immediate consequence. Authority on causation can be found in the case Barnett v Chelsea and Kensington Hospital Management Committee (1969). Neither in law nor in fact will causation prove an obstacle to Giggs’ claim.
Remoteness of damage will not prove an obstacle to Giggs’ claim either. This principle, settled by The Wagon Mound No.1 (1967) , provides that only damage which is a reasonably foreseeable consequence of a breach will be recoverable at law. In this case serious injuries have been caused to a pedestrian by a drunk driver. It is an old and familiar story and it is submitted that this is a normal and predictable consequences of negligence which causes an accident of this nature.
Therefore, it can be concluded on the basis of the above analysis that Giggs can secure an action in negligence against Scholes. The facts do not allow for thorough consideration of the issue of possible contributory negligence on the part of Giggs, but given that he was using a pedestrian crossing and that the court will have precious little sympathy for a drunk driver in these circumstances, it seems most unlikely that any damages awarded would be reduced on these grounds. Scholes is uninsured but this eventuality is covered by the Motor Insurer’s Bureau, which was established to provide compensation for negligent uninsured drivers.
It is possible that Neville may also be joined to the action and could be held liable in negligence for allowing an alcohol impaired guest to drive without attempting to stop him or contacting the authorities. However, the principal fault lies with Scholes and in light of the fact that there should be no difficulty in recovering full compensation against him there seems to be no justification for pursuing a claim against Neville.
Advice to O’Shea
The same five point analysis can be applied in relation to O’Shea’s potential claim. The foundation authority cited above in relation to Giggs’ claim is also directly applicable in this context on each specific and thus it will not be repeated in full. The reader is directed to the foregoing commentary for reference.
It is manifest that as a passenger in a car being driven by Scholes, O’Shea must be considered a neighbour of Scholes under the test established by Lord Atkins in Donoghue. Clearly O’Shea was close enough to Scholes to be directly affected by his actions and omissions. In terms of breach it is a simple matter to reapply the calculus of risk together with a modicum of common sense before concluding that it is certainly a breach of duty to drive an automobile while under the influence of alcohol in circumstances where there are no redeeming or mitigating factors.
Damage has been suffered as a result of Scholes’ actions, although the exact nature of the injuries sustained is not specified in the brief. Causation is again an easy point to prove, although the situation is complicated by the fact that O’Shea was not wearing a seatbelt at the point of accident.
It is likely that this has exacerbated his injuries and therefore that a new intervening cause (namely O’Shea’s failure to wear a seatbelt) has broken the chain of causation from Scholes’ drunk driving in this regard. This issue will also be considered below in the context of contributory negligence.
As for remoteness, there is no apparent difficulty in asserting that the general injuries suffered by O’Shea are a direct and reasonably foreseeable consequence of Scholes’ breach of duty under the Wagon Mound test.
Consequently, we can advise O’Shea that it is possible to establish a primary case for Scholes’ liability in negligence, at least for those injuries that would have been sustained even if a seat belt had been worn. There may be a causation problem in relation to injuries exacerbated by the fact that O’Shea failed to wear a seat belt. It will be necessary to obtain further and better particulars of the accident and the injuries suffered by O’Shea before more detailed advice can be offered on this point.
Again it may be possible for O’Shea to sue Neville for his negligence in allowing Scholes to drive away under the influence of alcohol, but the court is unlikely to be sympathetic to O’Shea, given his own complicity in the situation.
All that said, it should be noted that any claim made by O’Shea is likely to be seriously affected by contributory negligence and the issue of volenti non fit injuria (he who consents to a risk cannot later complain if injury is sustained) should be considered.
In Morris v Murray (1991) the plaintiff took a ride in a light aircraft with a pilot he knew to be drunk and the defence of volenti was deemed to operate to defeat the claim. Ashton v Turner (1981) applied the defence in the context of a motoring case and until recently it may have been likely that a court would take the view that O’Shea volunteered to take the risk of injury as a consequence of drunk driving when he got into the car with Scholes in knowledge of Scholes’ condition and allowed himself to be driven away. However, section 149 of the Road Traffic Act 1988 now removes the possibility that volenti can be cited as a defence by a motorist facing a claim from a passenger. This point was confirmed in Pitts v Hunt (1991).
However, section 149 RTA 1988 does not affect the matter of contributory negligence. It is clear that O’Shea is to some extent the author of his own misfortune and the court will take this into account in determining any damages awarded. O’Shea has contributed to the likelihood of his own injuries in two respects, first by allowing Scholes to drive him in a drunken condition and second by failing to wear a seat belt.
In Froom v Butcher (1976) the Court of Appeal ruled that non-use of a car seat belt generally constituted negligence some seven years before Parliament intervened to make the wearing of seatbelts compulsory by legislation. Nowadays there would be no debate and no excuse available to O’Shea, and the extent of any recoverable damages is likely to be significantly reduced by his omission in this regard.
Again, O’Shea’s claim against Scholes would require to join the Motor Insurer’s Bureau, given Scholes’ uninsured status.
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