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1. The primary (ie, first) judge found that Verryt (the car driver) was liable to Schoupp (the boy) for the injuries he suffered. Using the template below analyse the facts in this case to explain fully the reasoning the judge would have followed in applying the law to come to this legal conclusion.

2 The primary judge also found that Schoupp (the boy) had been careless about his own safety in four ways. However, the judge only took account of three of those ways in assessing the boy’s responsibility for own injuries (ie, he disregarded one of them).

(a) What were the four acts of carelessness by the boy?

(b) Which of the four did the judge disregard and for what legal reason did he take no account of it?

3. Despite finding that the boy was partly responsible for his own injuries the primary judge decided the driver should bear total responsibility (blame). What reason did the primary judge give for coming to this conclusion?

4. In the appeal the Court did not consider whether the actions of either the driver orthe boy had broken any statutory rule of the road. Explain why the question of whether any road rule had been broken was not relevant to the legal issue the Court of Appeal was deciding.

5. The Court of Appeal took a different view from that of the primary judge (as described in question 3) and said the boy must bear at least some blame. On the basis of what facts did the Court of Appeal come to this conclusion?

6. Despite concluding the boy must bear part of the blame the Court of Appeal said that it should be only a small part (ie, 10%). Explain the Court of Appeal’s ratio (ie, reasoning) in coming to this conclusion.

7. The Court of Appeal declared that the driver was responsible for the safe functioning of the vehicle vehicle and ‘skitching’ was not a safe function. What precedent (ie, principle having a wider application that to just this case) is the Court of Appeal expressing here which could apply to other persons in charge of cars, or a power boat on the water, or persons supervising activities where others (adults or children) are involved?

Ligal Element

Facts

Negligence / Duty of Care s 31(1) of the Civil Liability Act 1936)

The judges may have used the Civil Liability Act 1936 to assess the negligent or the duty of care and the liability that the driver’s had due to the negligent acts on his part (Howarth 2006, p.461). The judge may have confirmed if the following questions were satisfactory under s 32(2) 0f the Civil Liability Act (1936). First, the court may have asked if the driver owed the boy a duty of care for the injuries he incurred. Secondly, the judge could have confirmed if the driver breached his duty of care. Thirdly, the judge could have confirmed if the boy suffered an injury. Lastly, the court could have confirmed if the damage or the injury was as a result of the breach of the conduct. If the entire four questions are satisfactory, then the judge would be in a position to hold the driver liable for negligence. For example, in the case Galaske v. O’Donnel, (1994). It was any child under 16 years of age needs to be given guidance and direction from the older persons. The judge held that a driver who has children as passengers need to owe some responsibilities for their safety. Even though, it is the right of the driver to control and to drive a car, the law requires that he takes a sensible steps of making sure that every passenger and other road users are safe.  

Legal Element

Acts

Contributory Negligence [Civil Law (Wrongs)Act 2002]

a. 

· The social utility of the activity that created the risk in which the person was engaged.

· The possible  seriousness of the harm

· The burden of taking precautions to evade the injury (Shub & Lindfield 2005, p.92).

· The possibility that the injury would occur if care was not taken

b. The court disregarded the social utility of the activity or justifiability of the activity that created the risk. It is because in such cases the calculus of negligence factors will not always help in determining whether the claimant contributed to his own injury. On the other hand, the court may use the objective test, whereby the court would take into consideration what is expected from an individual who is taking sensible care of his safety.  

Legal Element

Facts

Standard of care and Contributory negligence

The law requires the driver to drive the vehicle in such a manner that takes into account the right of other road users. It is evident in the Boardman v MoD (2010) case where the judge held that, although, a driver is not expected to anticipate the recklessness of other people using the; he is under a duty to take into consideration that young children might do things irrationally and in an erratic manner (Kim 2011, p.276).  Additionally, the driver was the one with a dangerous weapon and it was not hard for the judge to allocate more responsibility to the boy in contributory negligence than to the driver unless the boy unexpectedly moved to way of the car. Therefore, it is up to the driver to consider such matters. It is evident in the case Toropdar v D (A minor) 2009 LAWTEL. In this case the court found that D was liable for the cause of the accident. It was also found that his actions contributed to causal of the death, but his guilt was reduced because he was a minor.

Legal Element

Facts

Not reasonably foreseeable

There was no evident that both the driver and the boy did not have actual knowledge concerning the occurrence of the accident nor should they have known. The driver was driving at a reasonable speed for the situation; therefore, he did not flout any of the traffic rules that could have resulted into breach of the rules. (Kim 2011, p.278).

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Legal element

Facts

Proportionate Liability

The reason to why the court of appeal took a different view from the previous primary judgment was because the judge felt that it was a contributory liability. For example in the case Sahakian v McDonnell, the court decided that the liability between the defendant and plaintiff to be 50/50. In the case, the claimant to cross the road from the back of a parked vehicle while speeding up. There were other cars parked at its proximity and other cars were approaching the claimant from the other direction. The court decided that the accused was over speeding without considering the road circumstance (Sahakian v McDonnell, 2007). The defendant speed was supposed to have been 25mph. Additionally; the court stated that the actions of the plaintiff were the main cause of the accident. It was because he crossed the road suddenly from the behind of a parked car without considering the eventuality of the unseen upcoming car. In this case the defendant was not in a position to evade the accident (Shub & Lindfield 2005, p.92).

Legal Element

Facts

Contributory negligence

The reason why the court held that the plaintiff (the boy) must only be liable to small portion (10%) of the contributory negligence is because he is a minor and that the driver should have had prior knowledge of the pedestrian’s presence. For example, in the case Goddard & Walker v Greenwood [2002], the pedestrians; Goddard and Walker approach the traffic lights as they were changing to green. Greenwood as the driver continued, but collided with the claimants as they were passing in front of him. The primary court did not find the defendant guilty on the basis that there was no obligation to slow down or stop. However, the court of appeal held that, turning green of the light did not mean that that the driver had discharged his duty of care as per the circumstance. Being that there was a stationary lorry on the left side of the defendant, he should have been alerted that pedestrians were crossing and should have behaved reasonable (Goddard & Walker v Greenwood, 2002). Therefore, the judge of the Court of Appeal decided that the defendant would be liable with 80% contributory negligence whilst the complainants with 20%.

Legal element

Facts

Liability and negligence

The driver needed to practice the highest degree of sensible care for safety of other road users and to the passengers, but it does not mean that the driver ensures that the passenger’s safety. For this reason, the driver is not liable for the harm to a passenger whose intention behavior of putting himself in a dangerous situation is close cause of his harm. It is evident in the case Jamison v Richardson (1956). Where the judge held that a carrier whether private or not could not be held liable for the harm to a passenger who has put himself into a dangerous position that results to their injuries. On the other hand, in the case Vedan v Stevens, a driver of a truck had a passenger in the front seat and four children in the back of the truck. The car neither had the seat belts nor seats for the children in the back of the vehicle. The court stated that the children should not have been carried in a vehicle that had neither seats nor seat belts. The driver knew that the children had moved to uncovered area of the truck but he was no able to see them because he was talking to the other passenger inside the vehicle and he had an unclear view of the children on the open area of the truck. In the process, one of the children stood up and veered off the road. There was lack of evidence at the proceedings to help in knowing what made the child to fall. The judge apportioned ¾ of the liability into the driver because of failing to take sufficient actions to make sure that the children were safe, and also that he was in a position where he was not able to adequately monitor or supervise the children’s actions.  

References

Boardman v MoD [2010] LAWTEL

Civil Law (Wrongs) Act 2002

Civil Liability Act 1936

Goddard & Walker v Greenwood [2002] EWCA Civ 1590; [2002] All ER 285

Howarth, D 2006, 'Many Duties of Care—Or A Duty of Care? Notes from the Underground', Oxford Journal of Legal Studies, vol. 26, no. 3, pp. 449-472.

Jamison v. Richardson [1956] 198 Va. 190, 93 S.E.2d 140.

Kim, J 2011, 'Compensating for unforeseeable damages in torts', Journal of Economics, vol. 104, no. 3, pp. 265-280.

Sahakian v McDonnell [2007] EWHC 3242

Shub, O, & Lindfield, M 2005, 'Proportionate Liability in Australia', FDCC Quarterly, vol. 56, no. 1, pp. 89-101.

Shub, O, & Lindfield, M 2005, 'Proportionate Liability in Australia', FDCC Quarterly, vol. 56, no. 1, pp. 89-101.

Toropdar v D. [2009] EWHC 2997

Vedan v. Stevens, 2011 BCCA 386.

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My Assignment Help (2020) Legal Element, Negligence And Liability: Exploring Cases And Factors [Online]. Available from: https://myassignmenthelp.com/free-samples/hi6008-business-research/duty-of-care-of-the-civil-liability-act-1936.html
[Accessed 19 July 2024].

My Assignment Help. 'Legal Element, Negligence And Liability: Exploring Cases And Factors' (My Assignment Help, 2020) <https://myassignmenthelp.com/free-samples/hi6008-business-research/duty-of-care-of-the-civil-liability-act-1936.html> accessed 19 July 2024.

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