Tort Statutes and Tort Theories

Question: Discuss about the Tort Statutes and Tort Theories. Answer: Introduction: Two friends went to attend a performance called An evening with Oprah. Since the performance was postponed by one hour Rebecca and Michelle conceded their time having wine together. After the performance was over, Michelle was too intoxicated to drive Rebecca received the ride anyway. Michelle crashed the car Rebecca sustained injuries Based on the facts, the issue that arises here is, whether Rebecca can file a case against Michelle for negligence or not? Relevant Rule: Under the Australian law, a person may be held liable for negligence, if he or she satisfies the following essentials: Duty of Care: This means that the plaintiff has the onus to prove before the Court of law that the defendant owed duty of care towards the plaintiff (Goudkamp, 2016). The duty of care means legal duty of care. This means that the plaintiff has the reasonable duty of care, which a man in a similar situation should utilise. Thus, the plaintiff should owe legal duty of care towards the defendant (Law Graziano, 2016). Breach of Duty of Care: The plaintiff owing the duty of care should have caused breach of the duty of care towards the defendant. This means that simply owing the duty of care towards the plaintiff is not enough to make the defendant liable for negligence. The defendant should have breached his duty of care towards the plaintiff (Mitchell, 2014). Causation: This is the third element of negligence, which means that the actions of the defendant have led to loss or injury or harm to the plaintiff. The negligent action of the defendant and the loss or injury of the plaintiff should have connection or association with each other (Levmore Sharkey, 2012). In the absence of connection between them, the plaintiff cannot claim for negligence on the part of the defendant. Damages: This is the final element of filing a suit for negligence. If the plaintiff has not suffered any harm or damages for the negligent action of the defendant, the plaintiff cannot file a suit for negligence against the defendant (Graham, 2012). Thus, the above-mentioned elements should be fulfilled to constitute the tort of negligence. In the famous case of Allen v. Chadwick, the High Court of Australia held that the passenger should be considered responsible if they chose to travel with a drunken driver. The Acts that are made by the Parliament of the State and the Territory govern the law of negligence in Australia (Bermingham Brennan, 2016). As per Section 47 of the Civil Liability Act, contributory negligence is presumed if the person chooses to travel with a drunken driver by relying on the skill and care of the intoxicated person (Shapo, 2014). At the time of determining contributory negligence, the Court should reduce the cost of compensation by a fixed percentage. This presumption of contributory negligence is non-rebuttable. There is an associated chance of overturning the Courts decision under Section 47 (2) of the Civil Liability Act if the plaintiff is able to establish that they could not reasonably be expecte d to have avoided the risk (Graham, 2012). According to the Civil Liability Act, intoxication means that the person is under the control of alcohol or a drug to such an extent that the persons capacity to use proper care and skill is hampered (Shapo, 2014). In the case of Russel v. Edwards, the plaintiff explained his own condition of intoxication as uncontrollable. Since he accepted that he was not able to use his judgement properly, the Court did not explore the definition further (Levmore Sharkey, 2012). Application: In the given case study, Michelle can be held liable for negligence. For making a person liable for negligence, he or she should have duty of care towards the plaintiff. The defendant should have breached the duty of care. There should be appropriate link between the injury caused and the action of the defendant leading to injury of the plaintiff. Finally, the plaintiff should have undergone some kind of injury to make the defendant liable for liable. Michelle satisfied all the conditions of being negligent towards Rebecca. Michelle owed duty of care towards Rebecca. Michelle breached the duty of care that he owed to Rebecca and consequently Rebecca suffered injury or lost. Thus, in the first instant Michelle can be held liable for negligence. However, if one analyses the actions of Rebecca it may be considered that Rebecca was negligent equally as Michelle was. The reason behind that is that Rebecca, on her own, chose to travel with Michelle knowing that Michelle is drunk and that s he was not in her senses to drive. As a man of ordinary prudence, Rebecca either should have chosen to drive on her own or should have not travelled at all. Since she chose to travel with Michelle, knowing that she is drunk, the liability can be shared equally between both. Furthermore, as per the definition of intoxication, Michelle can be considered as intoxicated to such an extent that she was not under the control of her ordinary senses. Moreover, even if Rebecca was equally responsible for being negligent, when she realized that Michelle was driving rashly she asked her to stop. This can be considered as a preventive step on the part of Rebecca. Thus, it may be held that Rebecca was not completely negligent and that she took preventive steps on her part to stop Michelle from driving any further. Conclusion: Thus, Rebecca may file a suit of negligence against Michelle. Nonetheless, the Court while making decision against Michelle will also consider contributory negligence on the part of Rebecca. Thus, it the Court will have to calculate the compensation keeping in mind negligence on the part of both Michelle and Rebecca. References: Bermingham, V., Brennan, C. (2016).Tort law directions. Oxford University Press. Goudkamp, J. (2016). Reforming English Tort Law: Lessons from Australia.Damages and Compensation Culture: Comparative Essays, Forthcoming. Goudkamp, J., Murphy, J. (2015). Tort statutes and tort theories. Graham, K. (2012). Of Frightened Horses and Autonomous Vehicles: Tort Law and Its Assimilation of Innovations.Santa Clara Law Review, Forthcoming. Law, C. T., Graziano, T. K. (2016). Limits of liability: The case of wrongful conception,wrongful life, and wrongful birth. Levmore, S., Sharkey, C. M. (2012).Foundations of tort law. LexisNexis. Mitchell, P. (2014).A History of Tort Law 19001950(Vol. 8). Cambridge University Press. Shapo, M. S. (2014).The Duty to Act: Tort Law, Power, and Public Policy. University of Texas Press.