Abigail A.

Johnson
6A
September 22, 2014
Teacher: Ms. Roxanne Ffrench
Law Assignment: The Elements and Defences in
Negligence
A. It is 10:30 p.m. There has been a party and Dan is drunk.
He cannot walk in a straight line, he keeps trying to start
fights with people, and his words are slurred. His girlfriend
Lisa asks him if he is sure that he is able to drive. Dan
assures her that he is. Five minutes in the car ride, there is
an accident. Lisa suffers a shoulder injury. Advise him.
B. There are two people travelling as passengers in Browns
car. There is 1) Billy who thinks that wearing seatbelts does
more harm than good and refuses to wear them and 2)
Carmen who is seven months pregnant and very big. Brown
is driving above the speed limit along a particularly smooth
road. He ignores the turn signal of the motorist in front of
him and crashes into him. Billy is flung from the vehicle and
breaks his back. Carmen is thrown unto the seat in front of
her and suffers a whiplash, a broken finger and a bruised
rib. Medical evidence shows that Carmen would not have
suffered a whiplash and bruised rib had she been wearing a
seatbelt. Advise Brown.

A.
In the case presented, the area of law being dealt with is negligence, raised on the part of
the defendant, Dan. Negligence as defined by Alderson B in Blyth v Birmingham Waterworks is,
the omission to do something which a reasonable man, guided upon these considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent
and reasonable man would not do. However as stated by Atkin L.J. in the landmark case of
Donoghue v Stevenson, You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. When the issue of, Who is my
neighbour? was raised, he affirmed, Persons who are so closely and directly affected by my
actions that I ought reasonably to have them in contemplation when I am directing my mind to
the acts or omissions which are called into question.
With the institution of the neighbour principle, one must then look to the constituents of
negligence that will prove whether or not the defendant is liable. First, there must have been a
duty on the part of the defendant to act. Second, there must have been a breach of such a duty.
Third, the breach of this duty must have caused the damage occurring to the claimant. Fourth and
finally, such damage must not have been too remote.
When determining whether or not Dan was negligent, the elements of negligence must be
applied. The burden of proving the elements of negligence falls on the claimant, who in this case
is Lisa, Dans girlfriend. As instituted in the case of Bourhill v Young, road users have a duty to
each other. Therefore, Dan had a duty to Lisa, and this duty was breached. As such, he acted
below the standard of care of a driver, which, as established in the case of Nettleship v Weston, is
that of a reasonably competent driver. He did so by driving while under the influence of alcohol.
In evaluating whether or not the breach of duty caused the accident, the 'but for' principle must
be applied. But for Dan's drunk-driving, would the accident have occurred? The reply given is a
negative one, therefore causation has been established. Additionally, it must be proved, on a
balance of probabilities that the damage suffered by Lisa was not too remote. The remoteness
from Wagon Mound No.1 which states that, "The damage must be of a kind which was
reasonably foreseeable. Once damage is of a kind that is reasonably foreseeable, the defendant is
liable for the full extent of the damage" is therefore applicable. Shoulder injury falls under the
kind of damage that is reasonably foreseeable in a car accident, and the case of Hughes v Lord
Advocate demonstrates that the way the damage happens is irrelevant. Consequently, Dan would
be held liable for the injuries incurred by Lisa as all the elements of negligence has affirmed his
liability unless he successfully raises a defence.

Based on the case presented, Dan may raise the defence of violenti non fit injuria, which
in essence, means that there is no injury to one who consents. As mentioned in the case, "He
cannot walk in a straight line, he keeps trying to start fights with people, and his words are
slurred. His girlfriend Lisa asks him if he is sure that he is able to drive. Dan assures her that he
is. " The questions asked when proving whether or not consent was given must be answered.
The first question raised is, "Was the claimant aware of the risk?" This question receives an
affirmative reply as she knew that he was unfit to drive, and would not act as a reasonably
competent driver. This is exemplified where he could not walk in a straight line, he continuously
attempted to start fights with people and his words were slurred. She even goes further to ask
Dan if he is sure that he is able to drive, and based on the principle arising from the case of
Caparo v Dickman, there was sufficient proximity of the relationship between Dan and Lisa, as
there was reasonably foresight of the consequences that could follow. The second question raised
is, "Did the claimant consent to the risk?" This question also receives an affirmative response as
indeed, Lisa consented to the risk. Dan assured her, in his drunken state that he was able to drive
and she then embarked on the car ride with him. The third and final question to be asked is,"Was
consent freely given?" This receives an affirmative response, as Lisa was not coerced into
allowing Dan to drive her.
As seen in the case of Dann v Hamilton, where a claimant was injured by a drunk driver
from whom she had accepted a lift. The driver was not so drunk that accepting a lift from him
would be akin to meddling with a bomb or walking on the edge of a cliff. Asquith J stated,
"There may be cases in which the drunkenness of the driver at the material time is so extreme
and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously
dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an
unfenced cliff. It is not necessary to decide whether in such a case the maxim violenti non fit
injuria' would apply, for in the present case I find as a fact that the driver's degree of intoxication
fell short of this degree". The principle arising from this case may be applied to the current
situation as indeed, the drunkenness of Dan at the time was so extreme and so glaring that to
accept a lift from him would be the equivalent of meddling with an unexploded bomb or walking
on the edge of an unfenced cliff. Also, based on the holding from Owens v Brimmell, Lisa may
have been found to be contributorily negligent. Contributory negligence, as defined by Denning
L.J. in Froom v Butcher is, A mans carelessness in looking after his own safety. He is guilty of
contributory negligence if he ought reasonably to have foreseen that, if he did not act as a
reasonable prudent man, he might be hurt himself. Watkins J in Owens v Brimmell expressed,
A passenger can be held to have been contributorily negligent if he rides with a driver who he
knows has consumer alcohol in such quantity as is likely to impair to a dangerous degree that
driver's capacity to drive properly and safely. Lisa was indeed aware of the risk Dan took, and
this is shown where she sees that he cannot walk in a straight line, he keeps trying to start fights
with people, and his words are slurred. She even goes further to asked him if he is sure that he is
able to drive, which shows that she had doubts of his capability to do so.

It can then be concluded that while Dan was negligent for driving below the standard of a
reasonably competent driver and may be charged accordingly in criminal law, he is not liable for
the injuries sustained by his girlfriend, Lisa. This is due to the fact that she gave consent freely
and fully aware of the risk which could occur; a car accident occurring as a result of Dan's drunk
driving and furthermore, she was contributorily negligent.

B.
In the case presented, the issue of negligence is raised on the part of the defendant,
Brown. Negligence as defined by Alderson B in Blyth v Birmingham Waterworks is, the
omission to do something which a reasonable man, guided upon these considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent
and reasonable man would not do. However as stated by Atkin L.J. in the landmark case of
Donoghue v Stevenson, You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. When the issue of, Who is my
neighbour? was raised, he asserted, Persons who are so closely and directly affected by my
actions that I ought reasonably to have them in contemplation when I am directing my mind to
the acts or omissions which are called into question.
With the establishment of the neighbour principle, one must then look to the elements of
negligence that will prove whether or not the defendant is liable. First, there must have been a
duty on the part of the defendant to act. Second, there must have been a breach of such a duty.
Third, the breach of this duty must have caused the damage occurring to the claimant. Fourth and
finally, such damage must not have been too remote.
When determining whether or not Brown was negligent, the elements of negligence
ought to be applied. The burden of proving the elements of negligence must be considered on a
balance of probabilities, and this responsibility falls on the claimants, Billy and Carmen. First,
one must consider whether or not Brown had a duty to his passengers, Billy and Carmen.
Following the principle arising from the case of Bourhill v Young, road users have a duty to each
other. Therefore, Brown had a duty to Billy and Carmen, and this duty was breached. As such, he
acted below the standard of care of a driver, which, as established in the case of Nettleship v
Weston, is that of a reasonably competent driver. He did so by driving above the speed limit and
ignoring the turn signal of a fellow motorist. In evaluating whether or not the breach of duty was
the cause of the accident, the but for principle should be used. The question raised then is, But
for Browns negligent act, i.e. speeding and ignoring the turn signal of the motorist in front of
him, would the accident have occurred? The question receives a negative response, and as such
causation has been determined. Additionally, it must be proved that the damages suffered by
Billy and Carmen were not too remote. The remoteness from Wagon Mound No.1 which states
that, "The damage must be of a kind which was reasonably foreseeable. Once damage is of a
kind that is reasonably foreseeable, the defendant is liable for the full extent of the damage" is
therefore applicable. A broken back, bruised rib, broken finger and whiplash all fall under the

kind of damage that is reasonably foreseeable in a car accident, and the case of Hughes v Lord
Advocate demonstrates that how the damage happened is irrelevant, but what ought to be viewed
is the type of damage. Subsequently, Brown would be held liable for the injuries incurred by
Billy and Carmen as all the elements of negligence has affirmed his liability unless he
successfully raises a defence.
A defence that may be raised by Brown is that of contributory negligence on the part of
Billy. Contributory negligence, as defined by Denning L.J. in Froom v Butcher is, A mans
carelessness in looking after his own safety. He is guilty of contributory negligence if he ought
reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt
himself. He went further to make a clear distinction between the cause of the accident, the
defendants negligent driving, and the causes of the injuries, the claimants carelessness for his
own safety in not wearing a seatbelt. Seatbelt cases involve consideration of causation in relation
to the damage suffered by the claimant. Denning L.J. provided guidance as to apportionment of
damages in such cases, "Whenever there is an accident, the negligent driver must bear by far the
greater share of responsibility. It was his negligence which caused the accident. It also was a
prime cause of the whole of the damage. But in so far as the damage might have been avoided or
lessened by wearing a seat belt, the injured person must bear some share... Sometimes the
evidence will show that the failure made no difference. The damage would have been the same,
even if a seat belt had been worn. In such case the damages should not be reduced at all.
As such, evidence must show that if Billy had indeed worn a seatbelt, he would or would
not have incurred injuries of that gravity. If the evidence shows if Billy had worn a seatbelt he
would not have incurred injuries of that gravity, then there will be a twenty-five per cent
reduction in the award of damages. If the evidence shows that if Billy had worn a seatbelt he still
would have incurred injuries, but of a lesser gravity, then there will be a fifteen per cent
reduction in the award of damages. If the evidence shows that if Billy had worn a seatbelt he still
would have incurred injuries of that gravity, then there will be no reduction for contributory
negligence.
Brown may also raise contributory negligence on the part of Carmen. He may raise the
principle arising from Froom v Butcher and argue that she ought reasonably to have foreseen
that, if she did not act as a reasonable prudent person, she might be hurt. He may also argue that
based on the medical evidence given, if she had worn her seatbelt, she would not have suffered
the whiplash and bruised rib and that would remove from him all liability. However as stated by
Baker P in Freeborn v. Thomas There are, of course, exceptions. A man who is unduly fat or
a woman who is pregnant may rightly be excused because, if there is an accident, the strap across
the abdomen may do more harm than good. As a result, Browns defence will fail.
It can then be concluded that while Brown was negligent for driving below the standard
of a reasonably competent driver and may be charged accordingly in criminal law, he could be
found liable for the injuries sustained by Billy, based on the evidence provided. Furthermore, he

would be liable for Carmens injuries as even though she had not been wearing a seatbelt due to
her pregnancy; principle states that she would be exempt from contributory negligence.
Additionally, he ought to have taken reasonable care as he was driving with a pregnant
passenger. As such, Carmen may seek damages from Brown to put her in the position had the tort
not been committed. Billy may also seek damages from Brown, but his damages could be
reduced as a result of his contributory negligence where he failed to wear a seatbelt.