Maya Singh LAW1902 Student ID:320002620

LAW 1902: Introduction to Legal Research and Writing

Assignment 6

Sam and his girlfriend, Tara, had far too much wine to drink at a celebratory dinner. When

they were ready to go home, Tara suggests that they call a taxi, but Sam insists that he is sober

enough to drive. On the way to Tara’s home, the car picks up a violent skid, mounts the

pavement and crashes into the store window of an upscale leather boutique owned by Undine.

Tara, who was not wearing a seat belt, is thrown through the windscreen and suffers serious

facial injuries. Sam is unhurt. Undine’s store is looted by some witnesses to the accident

before the police can arrive on the scene.

Prepare an opinion advising Sam on whether Tara and/or Undine can successfully bring a claim

against him for negligence.

Total 20 marks
Maya Singh LAW1902 Student ID:320002620

Facts

Sam and Tara had too much to drink. Tara suggests they call a taxi, but Sam insists he is sober

enough to drive. The car picks up a violent skid and crashes into the window of Undine’s store.

Tara who was not wearing a seatbelt sustained serious facial injuries. Undine’s store was looted

by witnesses of the accident.

Issues

 Did Sam owe a duty of care to Tara and was that duty breached?

 Can Sam be held liable for Tara’s facial injuries and can Tara claim for damages?

 Can Tara be held liable for contributory negligence as she failed to wear a seatbelt?

 Would Sam be liable in negligence for the damage to Undine’s boutique?

 Can Undine claim for damages of economic loss sustained by the crash?
Maya Singh LAW1902 Student ID:320002620

Answer

As Lord Wright explained in Lochgelly Iron and Coal Co Ltd v McMullan1 “‘negligence’

means more than heedless or careless conduct, whether in omission or commission; it properly

connotes the complex concept of duty, breach and damage thereby suffered by the person to

whom the duty was owing2”. Therefore, Negligence is the breach of a legal duty to take care

which results in damage to the plaintiff. There are three elements to the tort: duty of care,

breach of that duty and damage to the plaintiff resulting from the breach. For the plaintiff to be

successful in an action for Negligence, he must establish all three elements.

Advice to Sam regarding Tara

When advising Sam regarding Tara, it can be said that a reasonable duty of care was owed to

her by Sam. We will see below that a driver of a vehicle owes a duty of care to their passengers,

not to drive under the influence of alcohol. However, to fulfil the second requirement of the

tort of negligence, it must be determined, whether Sam breached that duty of care owed to Tara.

Sam can also use the defence of contributory negligence but cannot use the defence of volenti

non-fit injura.

A driver of a vehicle owes a duty of care to take proper precautions, in order to prevent damage

or harm to other road users, pedestrians, passengers or property. According to Gilbert

Kodilinye, to avoid such occurrences while driving, the driver should always, “keep a proper

lookout, observe traffic rules and signals, avoid excessive speed and also avoid driving under

the influence of alcohol”. In the event that the driver fails to exercise such reasonable care and

1
Lochgelly Iron and Coal Co Ltd v Mc Mullan [1934] AC 1, pg. 25
2
Kodilinye (2009) p. 77
Maya Singh LAW1902 Student ID:320002620

it results in the damage or serious injury to the plaintiff, the defendant can be sued for

negligence. Therefore, based on the principles established by Kodilinye, it is safe to say that

Sam owed a duty of care to Tara.

Furthermore, we need to consider the causation of the damage. We must prove that the

defendant's breach causes the harm to ascertain the liability of the defendant. In the court’s

consideration of causation, the ‘but for’ test is generally utilized. The ‘but for’ test suggests

that if the loss would not have occurred but for a certain event then that event is a cause.

However, if the loss would have happened anyway, then the event is not a cause, therefore, we

must look at the case of Barnett v Chelsea & Kensington Hospital3. Mr Barnett went to

hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who

telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the

morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr

Barnett at the time there would have been nothing the doctor could have done to save him. It

was held that the hospital was not liable as the doctor's failure to examine the patient did not

cause his death, but, it introduced the 'but for' test i.e. would the result have occurred but for

the act or omission of the defendant.

Taking this into consideration, we must apply the ‘but for’ test to the case at hand. Tara and

Sam both drank and wanted to leave the event. Tara suggested that they take a taxi, however,

Sam insisted that he was sober enough to drive which resulted in Sam crashing his vehicle and

Tara sustaining serious injuries. We must then ask ourselves if Sam and Tara had taken the taxi

would Tara still fall victim to her injuries. Due to the circumstances it is safe to say that if Tara

3
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Maya Singh LAW1902 Student ID:320002620

did not get into the vehicle with Sam and Sam did not breach his duty of care, she would not

have sustained her injuries, which makes Sam liable for her facial injuries, therefore Tara can

claim for damages.

However, since Tara was not wearing her seatbelt, Sam could use the defence of contributory

negligence. Contributory Negligence is where the Plaintiff’s failure to take reasonable care for

his safety combines with the Defendant’s negligence and results in damage to the Plaintiff 4.

The claimant’s failure to take care for their own safety may be a cause of the accident which

results in their damage. Alternatively, a person may place themselves in a dangerous position

which exposes them to the risk of involvement in the accident in which they are harmed. In

these circumstances the courts will find that the claimant was guilty of contributory negligence

but not volens to the risk.

Consider the case of Owens v Brimmell, it was held that the plaintiff was guilty of contributory

negligence for his failure to foresee the possibility that the driver’s ability to drive was impaired

by alcohol as a person is guilty of contributory negligence if he knew that the driver had

consumed so much alcohol as to impair his ability to drive safely or knowing that he would be

given a lift in the car, he accompanied the driver on a bout of drinking5. Also consider the case

of Froom v Butcher where the plaintiff was not wearing a seatbelt whilst driving because he

did not like seatbelts and because he had seen drivers being trapped after a crash because they

wore a seatbelt. After a crash, the plaintiff suffered head and chest injuries and a broken finger.

It was held that the plaintiff’s injuries, except for the broken finger, were caused by his failure

to wear a seatbelt and therefore, he was guilty of contributory negligence. For this reason, the

4
Scott S, “Class Notes on Negligence” student reference paper (2018) p. 12
5
All Answers ltd, 'Owens v Brimmell - 1977' (Lawteacher.net, April 2018)
<https://www.google.tt/?vref=1> accessed 2 April 2018
Maya Singh LAW1902 Student ID:320002620

defendant’s damages were reduced by 20 per cent. Tara did not wear a seatbelt, which made

her suffer serious injuries making her guilty of contributory negligence for her failure to wear

a seatbelt. Acknowledging the rule Froom v Brimmell Tara would have her damages reduced

for contributory negligence.

Furthermore, if Tara sued Sam for negligence, he cannot use the defence of volenti non-fit

injuria and contributory negligence. Volenti non-fit injura mean ‘to one who volunteers, no

harm is done.’ It must be shown that the claimant acted voluntarily in the sense that they could

exercise a free choice. Knowledge of a risk does not equal consent to run that risk. The defence

of volenti would fail as Tara may be aware that Sam was drunk but she did not consent to him

driving negligently as she did offer to call a taxi, therefore, Tara would not be guilty of volenti

non-fit injura.

Advise to Sam regarding Undine

When advising Sam with regards to Undine, it is safe to say that she would also have a case

for negligence against Sam, due to the damage he caused to her boutique. Sam owed her duty

of care, which he breached by driving his car while under the influence of alcohol. As we will

see below, the driver of a vehicle owes a duty to exercise reasonable care for other road users

and to another person’s property. Undine can also hold Sam liable for negligence using the

principle of res ipsa loquitur and can claim for damages resulting in economic loss because of

damage to her property.

The burden of proving negligence lies on the Plaintiff to prove specific acts on the part of the

Defendant, but the Plaintiff may be able to rely on the principle of res ipsa loquitur, which

means ‘the facts speaks for themselves.’ Here negligence is presumed, thus requiring the
Maya Singh LAW1902 Student ID:320002620

Defendant to show either that the damage was due to a specific cause which did not involve

negligence on his part or that he had used reasonable care6. According to the principle laid in

Donoghue v Stevenson, a duty of care is owed whenever it is reasonably foreseeable that the

Plaintiff would be harmed by the Defendant’s act or omission. As it was held in Bourhill v

Young 7 a driver of a vehicle on the road is under a duty to take proper care not to cause damage

to other road users or to the property of others. In order to adhere to this duty, the driver should

observe all traffic rules, avoid excessive speed and according to the case of Owens v Brimmell8

avoid driving under the influence of alcohol. Therefore, Sam owed a Duty of Care to Undine’s

store (property) and was in breach of that duty when his vehicle skid and crashed into the

window of Undine’s store due to him driving under the influence resulting in damages to

Undine from the breach. The elements of the tort of Negligence are present and therefore

Undine can sue Sam for Negligence using the principle of res ipsa loquitur.

Furthermore, we must look at whether Undine can claim for damages resulting in economic

loss caused by the crash. In the famous case of Donoghue v Stevenson where Lord Atkins

outlined that: "You must take care to avoid acts or omissions which you can reasonably foresee

would be likely to injure your neighbour". The word "neighbour" means anyone so closely

affected by the act that the effect upon them would have been foreseeable9. Economic loss is

consequent upon physical damage to the plaintiff and his property. This type of economic loss

is compensable and for your loss to be consequential economic loss, the injury/property

damage must be to you, not someone else.

6
Scott S, “Class Notes on Negligence” student reference paper (2018) p. 7
7
Bourhill v Young [1943] AC 92.
8
Owens v Brimmell [1976] 3 All ER 765.
9
'Recovery of economic loss in negligence' (Lawteacher.net, April 2018)
<https://www.google.tt/?vref=1> accessed 4 April 2018
Maya Singh LAW1902 Student ID:320002620

The leading case on this point is Spartan Steel and Alloys Ltd v Martin and Co Ltd, where it

was held that a person who negligently damaged a cable belonging to the power authority,

thereby cutting off the electricity supply to the plaintiffs’ nearby factory, was not liable to the

plaintiffs for loss of profits arising from the stoppage of steel production during the power cut,

because there was no duty to avoid causing purely economic loss. It is significant, however,

that in this case the plaintiffs did recover for financial loss arising from damage to molten metal

which was in their furnace at the time of the power cut because this loss was consequent upon

physical damage to the metal. Hence, they were compensated for the economic loss alone, not

future losses10.

As a result of Sam’s negligent driving, his car crashed into Undine’s store window causing

damages to her store. Due to the store window being broken, additional damages occurred

when witnesses looted her store. Referring to the case law above, Undine can claim for

damages resulting in economic loss because of damage to her property. She can be

compensated the monetary value for the number of items looted, however, Undine cannot

receive compensation for any future money that would have been lost due to the store being

closed for repairs.

10
Kodilinye (2009) pg. 139
Maya Singh LAW1902 Student ID:320002620

References

 All Answers ltd, 'Issue of the tort of negligence' (Lawteacher.net, April 2018)

<https://www.google.tt/?vref=1> accessed 2 April 2018.

 'Recovery of economic loss in negligence' (Lawteacher.net, April 2018)

<https://www.google.tt/?vref=1> accessed 4 April 2018

 Scott S, “Class Notes on Negligence” student reference paper (2018)

 Kodilinye G, Anderson R and Kodilinye V, Commonwealth Caribbean Tort Law

(Routledge 2015)