BUS107: Rebecca can sue Michelle under the law of negligence for the losses sustained - Commercial Law Assessment Answers

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Assignment Question

Two friends, Rebecca and Michelle, attended a performance called ‘An Evening with Oprah’ with Oprah Winfrey. A ticketing issue at the box office caused the performance to be delayed by one hour so Rebecca and Michelle passed the time drinking wine together at one of the venues many bars.

After the performance, Rebecca realised that Michelle was too drunk to drive but accepted a ride home anyway. When Michelle started driving dangerously, Rebecca twice asked to get out of the car. Michelle continued driving and crashed the car. Rebecca sustained serious injuries including a broken leg. She now wishes to sue Michelle in negligence for her losses

Issue

The main issues as per the given facts are:

1. Whether Rebecca can sue Michelle under the law of negligence for the losses sustained by her?
2. Whether Michelle can take any defense in order to protect his interest?

Applicable Law

The law of negligence is applicable in the given situation.

The law of negligence is a branch of tort law and it establishes that every defendant should act in such a manner so that no loss or injury should be caused to any plaintiff with whom he has a proximate relationship and if any loss is sustained then there is breach of duty by the defendant and is considered negligent in law. The law of negligence was developed in Langridge v Levy (1837) and later established in Donoghue v Stevenson (1932) (Web 2016). But, in Australia, it was in Grant v Australian Knitting Mills (1936), that the law of negligence was analyzed. The basic ingredients to prove any defendant negligent are:

1. That every defendant owns a duty of care not to harm any plaintiff because of his actions or omissions. The duty prevails only when the plaintiff is in proximate relationship with the defendant and the risk is reasonable foreseeable (MacPherson v. Buick Motor Co. (1916). (Negligence 2016)
2. The duty of care when not comply with by the defendant is said to be violated. The duty is breached when the level of care and the standard that is required from the defendant is not met by him in the given circumstances (Sullivan v Moody (2001). (Power 2014)
3. When the duty of care is violated by the defendant then the sane must cause some kind of damage to the plaintiff and the damage must be the direct result of the breach and must not be remote in nature.

The compliance of all the above elements results in considering the defendant negligent in his actions. However, a defendant can still protect himself by availing some of the defenses that are provided to him under the law. The same are: (VRLAW 2003)

1. When the plaintiff is aware of the risk that might incur because of the actions that are undertaken by the defendant, however, the plaintiff still voluntarily assumes such risk and suffer damages, then, the defendant cannot be held negligent under the law of negligence and no liability can be imposed upon him (Wentworth Shire Council v Berryman& Anor (2002).
2. When the plaintiff contributed to the risk that is caused because of the negligent actions of the defendant, then, the defense of contributory negligence will apply and the defendant liability can be reduced to the extent the plaintiff has contributed to his own loss (Dann v Hamilton (1939).

Now, the law of negligence is also applicable in cases of ‘drink and drive’. Generally, every driver owns a duty of care to drive the vehicle in such manner so that no loss is caused to any person who is in proximate relationship with him, that is, upon whom the acts and omission of the driver will directly fall, such as, pedestrians, passengers, etc. This duty of care enhances further especially when the driver is drunk (Manley v Alexander (2005) (Treston 2016). When a drunk driver drives a vehicle causing harm to any other person then there is breach of such duty and the plaintiff can sue the driver under the law of negligence (North v TNT Express (2001). (Mawer 2016)

Many times, the driver tries to protect his interest by relying on the defenses available and can claim that the passenger loss was because of his voluntary actions or has contributed to his own loss. In Allen v Chadwick(2015), it was held by the court that when the passenger himself choose to travel with a driver who is intoxicated, then, such passenger has contributed to his own loss and hence the liability of the driver must be reduced to the extent the passenger is negligent. However, this defense of contributed negligible can be rebutted if the passenger is not able to avoid the risk. (Legal Vision 2016)

The law is now applied to the facts of the case.

Application of Law

Rebecca and Michelle are friends and had wine together. After watching the Opera performance, Rebecca is fully aware that Michelle was too drunk to drive. However, knowing the said fact she still accepted a ride home anyway.

In such situation, since Michelle was driving, hence, it is his general duty of care to drive in such manner so that no loss is caused either to the passenger or the pedestrian. The duty of care enhances when he is driving intoxicated (Manley –v- Alexander (2005). But, because of his breach of duty of care, loss is caused to Rebecca, as she suffered a broken leg. Thus, a duty of care was violated by him causing harm to Rebecca, thus, Michelle should be held negligent in law.

But, since Rebecca has accepted to take a ride knowing the fact that Michelle is intoxicated, thus, she has contributed to her own loss and Michelle can rely on the defense of contributory negligence.

However, when Michelle was driving the car, Rebecca wished to get out of the car twice. However, despite the resistance made by Rebecca, Michelle continued driving the car. In such scenario, it is submitted that the defense of contributory negligence can be rebutted if the plaintiff is not able to avoid the risk. In the given scenario, even on the resistance made by Rebecca, Micelle did not stop the car. Thus, Rebecca was notable to avoid the risk and thus can rebut the defense of contributory negligence made by Michelle.

Conclusion

It is thus concluded that Rebecca can sue Michelle for causing loss to her under the law of negligence. Michelle could have relied on the defense of contributory negligence, but, later when the car was not stopped by him even when resistance was made by Rebecca, thus, the defense of contribute negligence can be rebutted. So no defense can be raised by Michelle.