Highlights Case Of Negligence And Possible â€Myassignmenthelp.Com

Question: Discuss About The Highlights Case Of Negligence And Possible? Answer: Introducation Negligence can be defined in the simplest forms as such a breach of the obligation of care owed by one person to some other person. This has to include the harm, loss or injury to the person to which the duty of care was owed due to the actions undertaken by the individual who owed a duty to care to such injured or harmed party (Greene, 2013). In order to make a case of negligence before a court of law, the plaintiff is required to show that there had been a duty of care owed to him, which had been violated, which caused harm/ loss/ injury, and was not only foreseeable in a reasonable manner but was also not too remote, in addition to the presence of proximity between the parties and a direct causation between the breached duty and the injury/ harm/ loss of the plaintiff (Statsky, 2011). For establishing duty of care, proximity, reasonable foreseeability and contravention of duty of care, the English case of Donoghue v Stevenson [1932] UKHL 100 proves to be of help. In this case, Donoghue drank the ginger beer from the bottle which was manufactured by the defendant of this case, Stevenson. As a dead snail was present inside this bottle, the drink was contaminated and upon drinking the same, Donoghue fell sick and sued for compensation under tort of negligence committed by Stevenson. However, Stevenson denied owing a duty to Donoghue (Lunney and Oliphant, 2013). The court held otherwise and stated that a duty of care was owed by Stevenson due to the proximity of relationship between a consumer and the manufacturer of the product. Further, this risk of harm was reasonably foreseeable due to the fact that a contaminated bottle was bound to make the consumer sick. As the manufacturer failed to ensure the safety of thee ginger beer, he contravened his obligation of care a nd was asked to compensate Donoghue for her losses (Latimer, 2012). Whenever a case of negligence is made, a common defence which is cited is that of volenti non fit injuria. As per this concept, the plaintiff of the case, i.e., the person who has been injured as a result of the negligence of other knowingly takes the risk even when they are clearly aware of the fact that the risk of harm/ injury/ loss was present. When this defence is present, the claim of negligence is not upheld (Turner, 2013). In the case of ICI Ltd v Shatwell [1965] AC 656, the brother had been injured due to the explosion of the quarry of the defendant which was a result of the negligence of the brother. A worker had gone to get more wire yet they did not wait for him and tested with a shorter wire. When the explosion occurred, they made a claim against the defendant on the basis of concept of vicarious liability of the employer for negligence and also for violating the statutory duty to the other brother. However, the defendant raised the defence under volenti non fit injuria and presented that they had clear knowledge of risk and that they had acted against the express instructions given to them. The court upheld this defence and quashed the claims of the brothers (E-Law Resources, 2017). When it comes to such cases where driving under the influence of alcohol is involved, and where an accident is caused as a result of it, it is clear that such accidents occur due to the diminished ability of the driver. And this often gives rise to claims of negligence. However, the passengers also owe certain responsibility in such cases and where they wilfully accept ride from a drunk driver, their claim can be quashed due to the defence of volenti non fit injuria (Navin, 2016). An example of such occurrence is the case of Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39. In this case, the passenger had clear knowledge that the driver was under the influence of alcohol and had been inebriated as a result of drinking. And still, the passenger took the ride from the plaintiff voluntarily, without any pressure. Hence, the High Court ruled in favour of the defendant and stated that negligence cannot be claimed by the plaintiff as they voluntarily assumed the risk of harm (Jade, 2017). Application The facts of this case study reveal that Michelle was under the influence of alcohol and Rebecca clearly knew this as they had consumed the wine at the concert together. Rebecca can make a claim of negligence against Michelle for driving under influence of alcohol on the basis of Donoghue v Stevenson and claim that a duty of care was owed by Michelle as driving under alcohol influence is bound to cause an accident and is reasonably foreseeable. Further, the driver and passenger do have proximity of relationship and Rebecca was also injured. However, the chances of this claim being deemed as a success are less. This is due to the fact that Michelle can opt for the defence of volenti non fit injuria. Applying ICI Ltd v Shatwell, Rebecca had voluntarily assumed the risk so her claim of negligence against Michelle would be cancelled. Applying Insurance Commissioner v Joyce, this point is strengthened as she had voluntarily assumed the ride from Michelle. Even though she raised her voice later on, but that was only when Michelle drove riskily, but till then, she had already assumed the risk. Hence, her claim of negligence against Michelle is not likely to be upheld. Conclusion Due to the success of volenti non fit injuria, Rebeccas claim against Michelle would fail and Michelle would not have to compensate her for negligence. References E-Law Resources. (2017) Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of Lords. [Online] E-Law Resources. Available from: https://www.e-lawresources.co.uk/Imperial-Chemical-Industries-Ltd-v-Shatwell.php [Accessed on: 13/09/17] Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge. Jade. (2017) Insurance Commissioner v Joyce. [Online] Jade. Available from: https://jade.io/article/64545 [Accessed on: 13/09/17] Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited. Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press. Navin, M. (2016) Values and Vaccine Refusal: Hard Questions in Ethics, Epistemology, and Health Care. Oxon: Routledge. Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning. Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.