Law of Negligence

Rebecca sustained serious injuries including a broken leg. She now wishes to sue Michelle in negligence for her losses. Advise Rebecca.

Facts 

Michelle and Rebecca were two friends who went to attend a function called “An Evening with Oprah” with Oprah Winfrey. Due to some inconvenience caused at the box office because of some ticketing issue, the performance got postponed by an hour. Because of this delay of the performance, both Michelle and Rebecca thought of passing the time together by drinking wine at some bar. After an hour, it has been seen that Michelle has got drunk and was not being able to drive. But somehow, she managed to drive till home. Michelle was driving very recklessly. Seeing this, Rebecca asked her to stop driving, but instead of getting out of the car Michelle did not stopped driving and crashed the car. This caused damage to Rebecca as she got severe injuries and also one of her leg is broken. This is why Rebecca now wants to sue Michelle for her negligence which caused her damage.

Law 

Negligence in general meaning can be denoted as mere carelessness. In terms of law, negligence can be defined as law as failure to exercise proper care which the person doing, having sound judgment, by law, would have done in certain circumstances. Many kinds of harms may be caused because of negligence, as there have been no sufficient precautions taken as it should have been taken in the circumstances to prevent that harm being caused. It means that there is an existence of legal duty to take care of the plaintiff. This means that the plaintiff has to prove that the defendant is under obligation for a certain or specific legal duty to take care of the plaintiff, but instead of that, the defendant had breach the duty, Donoghue v Stevenson (Uwa, 2010), 

Whether there is any beach of duty caused against the plaintiff depends on the circumstance of the negligence. If at the time of the act, the defendant could easily become aware of the injury, the defendant is liable for the damage caused to the plaintiff as he owe the duty of preventing that injury. If the defendant fails to understand the amount of risk which can cause to the plaintiff is said to have breach the duty. There is no liability of the defendant towards the plaintiff, if the damage is unseen. The standard of care which a defendant should take does not have any measurement. A care only means or in other words, requires of the possible attention given to the risk by a reasonable person under specific situation. Though there is a breach of duty and the act of the defendant has caused damage or injury to the plaintiff, the plaintiff may not get compensated unless he prove that the breach of duty by the defendant has cause pecuniary injury. If the damages are not a necessary factor, the plaintiff can get compensated without showing any damages caused to him or proving the same. If the plaintiff is successful in proving damage where the defendant is liable to pay, he can also get compensated even for mental distress, which is considered to be a non-pecuniary injury (Sa, 2013). 

The word damages caused because of negligence is very much compensatory in its nature. The award granted by the court, i.e. compensation made to the plaintiff should be enough to put back the plaintiff in his actual position where he was prior to the negligent act of the defendant. The amount paid as compensation to the plaintiff should be a lump sum amount paid at once no part payment is accepted on the part of the defendant. Once the payment is made to the plaintiff, the court will not look up to the way the plaintiff is spending the money (Bugg, 2006). 

Advise 

Michelle due to his negligent driving has caused damage to Rebecca. After being warned for several times by Rebecca, Michelle did not listen to her. Being drunk she crashed the car and also she caused injury to her friend. Michelle could have foreseen the damage caused by her negligent act and slow down her car in order to prevent the car being crashed. Instead of that, she had driven the car recklessly. This action of her has made her liable for the injury caused to her friend. Michelle owes the duty of taking care of her friend Rebecca. Michelle has even failed to understand the amount of risk that can cause to her friend Rebecca, which leads to the breach of duty on the part of Michelle. If Michelle was not being able to foresee the action that has caused damage to both Rebecca and herself, she would not be held liable for the damages or injury (Ross, 2012).

Rebecca can easily sue her friend Michelle for the injury caused to her due to the negligence act of Michelle. For this, Rebecca is not bound to prove the negligent act of her friend to prove the pecuniary injury caused to her, as it is completely visible to everyone. Michelle in general terms, is liable to compensate Rebecca for the injury caused to her. In order to sue Michelle, Rebecca can file a complaint before the court for the compensation for the injuries caused to her due to the negligent action of her friend. But in this case, Michelle will not be held liable. This is because, when Michelle was driving the car, she was drunk. A person, in an intoxicated condition cannot work sensible as he would have work when in a proper condition where his mind can work sensibly. As it is known that, any offence committed in an intoxicated condition, the person committing the offence is not held guilty. Therefore, Michelle while driving the car could not foresee or be aware of the risk it can cause to both of them. At that point of time, she was not a responsible person because of her being drunk, she was not in the state of mind to act as a conscious and responsible person. Therefore, Michelle could not be held liable for the injury caused to Rebecca. Hence, Rebecca could not sue her (legalaid, 2015).

References:

Bugg, T. (2006, May 26). Negligence and damages – personal injury, property damage and pure economic loss. Retrieved September 15, 2016, from Asn: http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/speeches/20060526Negligenceanddamages.pdf

legalaid. (2015, November 27). Negligence. Retrieved September 15, 2016, from legalaid: http://www.legalaid.wa.gov.au/Informationaboutthelaw/Birthlifeanddeath/Personalinjury/Pages/
Negligence.aspx

Ross, N. (2012, august 23). Boy wins negligence case against private hospital. Retrieved September 15, 2016, from heraldsun: http://www.heraldsun.com.au/news/national/boy-wins-negligence-case-against-private-hospital/story-fndo3ewo-1226456666319

Sa. (2013, August 02). Negligence. Retrieved September 15, 2016, from lawhandbook: http://www.lawhandbook.sa.gov.au/ch01s05.php

Uwa. (2010). Donoghue v Stevenson (1932) – The snail in the bottle (duty of care created). Retrieved September 15, 2016, from Uwa: http://www.web.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development-of-law-negligence.pdf

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