Cases and Commentary on Tort

Question: Discuss about the Cases and Commentary on Tort. Answer: Introduction When one person fails to exercise the necessary care which a reasonable person would take in a similar case, it is the case of negligence. In case such negligence results in an injury or harm to the other person, the other person is eligible to remedies. These remedies are provided under the Tort Law in Australia (Trindade, Cane and Lunney, 2007). In the following segments, the various aspects of negligence applicable on the given case have been discussed. Case In the given case, Rebecca and Michelle drank wine to pass time. Rebecca knew that Michelle was very drunk and still, she accepted a ride home from her. Because of the dangerous driving of Michelle, an accident occurred in which Rebecca sustained serious injuries. Rebecca had asked Michelle to get out of the car twice. But Michelle did not listen to her and continued driving. The main issue in this case is the options available with Rebecca regarding the negligence of Michelle which resulted in serious injuries. As per the Common Law, the driver of a vehicle owes a duty of care to its passengers as well as the various users on the road. The Tort Laws holds a person in negligence when this duty of care is not discharged properly, especially when it results in an injury. However, the Common Law also holds that the aggrieved party owes the duty of care to take care of themselves. In case the plaintiff fails to discharge this duty, they are held liable on the basis of contributory negligence. When the injury is caused by the own fault of the plaintiff and partly because of the fault of the defendant, it is the case of contributory negligence (Magnus, et al., 2004). This concept holds that the injury was caused because the plaintiff did not take the necessary care for their own protection. And for this reason, the plaintiff cannot seek remedies against the defendant (Levinson, 2002). Volenti non fit injuria is one of the concepts where the defendant cannot be held liable for the mistakes of plaintiff. According to this concept, the plaintiff undertakes the risks voluntarily, even when they are aware that such risk may result in an injury. In the case of ICI Ltd v Shatwell [1965] AC 656, the House held that the actions of the plaintiff amounted to volenti non fit injuria (Swarb, 2016). The concept of volenti non fit injuria holds that the plaintiff has to take the responsibility for their action. And where their actions resulted in an injury, they cannot claim negligence under the Tort Law. In the case of Barrett v Ministry of Defence [1995] 3 All ER 86, this concept was affirmed and the defendant was not held liable for the breach of duty of care towards its employees (Pearson, 2016). In the cases of drunk driving, the ability of the driver is impaired due to intoxication and results in accidents. When the plaintiff is also inebriated and accepts a ride from the drunk driver, it results in contributory negligence. Also, the concept of volenti non fit injuria applies on such passenger (Harvey and Marston, 2009). The passenger must take the necessary care for their own wellbeing. Voluntarily accepting lift from an intoxicated person proves that the necessary care was not taken to safeguard their own interests. The defendant also has a duty of care towards their passengers as they are ultimately in charge of the vehicle. Unless a plaintiff is aware about such intoxication, he cannot be held liable for a breach of duty of own care. And in these cases, the defendant is held liable for negligence. So, to establish the fault of defendant, the plaintiff has to show that they had no knowledge about the intoxication. The facts of the present case are identical to the case of Insurance Commissioner V Joyce [1948] HCA 17; (1948) 77 CLR 39 (Shircore, 2007). In this case, the High Court held that the defendant, who was an intoxicated driver, did not breach the duty of care towards his passengers. The judge held that the passenger knew that the driver was inebriated, and yet he voluntarily undertook the services of the driver. So, the passenger here cannot complain about the improper driving as there is no breach of duty in this case. Applying the above concepts and cases to the present case, it can be held that Rebecca would not succeed in her claim of negligence, for loss, against Michelle. Rebecca had voluntarily accepted the services of Michelle for dropping her home. Further, Rebecca was aware that both she and Michelle were drunk as they had consumed the liquor together. In order to successfully claim against Michelle, Rebecca needs to show that she had taken the necessary precautions to safeguard herself. Rebecca had twice asked to get out of the car and she can use this defense against the contributory negligence and volenti non fit injuria. This defense of Rebecca would not succeed. She had failed to take duty of care when she had the opportunity to do so. After watching Michelle driving dangerously she asked to stop her. But it is an established fact that an intoxicated driver is unable to drive properly as the driving gets impaired due to intoxication. So, Rebecca had already failed on the duty of care. Conclusion Based on the above application of the laws and the cases, it can be concluded that Rebecca does not have any remedy available with her on the basis of a claim of negligence, which resulted in a loss. Further, she would be held liable for volenti non fit injuria and contributory negligence. So, it is advised to Rebecca to not sue Michelle, as the Court would hold her equally guilty in the present case. References Shircore, M. (2007) Drinking, Driving And Causing Injury: The Position Of The Passenger Of An Intoxicated Driver. Queensland University of Technology Law and Justice Journal, 7(2). Pearson. (2016) Defences to negligence. [Online] Pearson. Available from: https://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/Cooke_C09.pdf [Accessed on 15/09/16] Swarb. (2016) Imperial Chemical Industries Ltd V Shatwell; Hl 6 Jul 1964. [Online] Swarb. Available from: https://swarb.co.uk/imperial-chemical-industries-ltd-v-shatwell-hl-6-jul-1964/ [Accessed on 15/09/16] Magnus, U. et al. (2004) Unification of Tort Law: Contributory Negligence. Netherlands: Kluwer Law International. Levinson, J. (2002). Contributory Negligence. UK: EMIS Professional Publishing Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. Oxford: Oxford University Press, pp 256-259 Singh, S.P. (2010). Law of tort: Including Compensation Under the Consumer Protection Act. 5th ed. New Delhi: universal Law Publishing Co. Pvt. Ltd., pp 32-43 Trindade, F.A., Cane, P., and Lunney, M. (2007). The Law of Torts in Australia. 4th ed. Oxford: Oxford University Press.