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Tort law - duty of care
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| Words: 1500 | Submitted: 11-May-2008
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DescriptionOn the Tort law and specifically duty of care
In respect of the broken leg Collin suffered occasioned by the collision with Derek, the usual determinant of causation is the ‘but for’ test whereby the defendant would only be liable if the claimant would not have suffered the damage ‘but for’ the defendant’s negligence. This operation of test can be seen in the case of Barnett v. Chelsea & Kensington Hospital Management Committee . In Rouse v. Squires , Cairns LJ said that:
“…If a driver so negligently managed his vehicle as to cause it to obstruct the highway and constitute a danger to other road users (including those who were driving too fast or not keeping a proper look-out, but not those who deliberately or recklessly drove into the obstruction) then the first driver's negligence might be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which, because of the presence of the obstruction, collided with it or with some other vehicle or some other person…” Per Cairns LJ in Rouse v. Squires
In applying that speech to the present situation, it is a clear indication that if Derek’s driving was merely driving negligently his car in excess of the speed limit, then he would be liable for the injury suffered by Colin.
Since there is prima facie evidence to suggest that there was contributory negligence on Colin’s part, it can be stated with some measure of certainty that Derek may not be held liable for the full extent of the losses flowing from the original accident. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 states:
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”
In the present situation, Colin’s degree of blameworthiness was great, in which case a large percentage reduction may be justified. For example, in Baker v. Willoughby , the Court of Appeal found that the claimant was 50 per cent contributorily negligent and a 50 per cent of reduction was considered appropriate where he had a clear view of the road for the last 200 yards travelled by the car yet had not taken evasive action. While the claimant’s conduct did not have to be the cause of the collision, it must be casually relevant to the harm suffered. Similarly, Colin as a pedestrian failed to keep a proper look-out before walking across the road would have contributed to the collision which led to his injury.
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