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Question:

Whether Rebecca has a case of negligence and can she claim damages for her losses from Michelle?
 
 

Answer:

Rule:

In a case, where a person fails to exercise reasonable care in a particular situation and causes harm or injury to another person it amounts to negligence (Legal Services Commission, 2013). Negligence comprises of different elements such as:

Duty of Concern- It is the lawful duty enforced upon an individual, who is required to abide himself in showing rational concern while doing act which can predict to cause harm. An individual is liable, if he breaches this duty (The Law Hand Book, 2016).

Contravention of Responsibility- It is done when an individual who has an obligation of concern towards another and intentionally exposes that individual for the material risk of injury. One’s action can cause failure to realize such an injury or harm.

Reason- It is the test of legal obligation for exploring whether a particular work or its exclusion by a person is the actual reason of damage caused to another; thus fallout in breach of duty owned to other person who is injured.

Immediate Cause- It is the legal responsibility in rational concern rested on other person within a predictable zone of danger, whereby informal connection exists between conduct and result within a zone.

Injury- It is the effect of bodily injury, loss, private reputation confirmed from the violation of Obligation of concern. Thus, it enables the injured party to recover compensation.

Negligence also includes Contributory negligence. Contributory Negligence occurs when the person who is injured himself is found to have contributed to the cause of harm. If the person who is injured has failed to take reasonable concern of his own safety then he will be found to be contributorily negligent for such acts.

 

Application:

Usually under the law of Australia, an individual may be liable for negligence if an individual:

Owe an obligation of concern towards another person;

Fails to take rational concern; and

Failure causes to the other person any injury or loss.

However, according to law an individual who is injured if contributed to such a loss by failing to show rational concern is said to be contibutorily negligent.

According to Section 47 of the Civil Liability Act, 1936(SA), Contributory Negligence has been assumed, if a person who has been injured trusts on the concern and ability of a person who is drunk. Where it has been assumed to be Contributory negligence, the tribunal should decrease the assessment of the compensation of the person who is injured by a fixed percentage. But As per Section 47(2) (b), the assumption can be annulled if the person who is injured constitutes that he was not in a position to logically be anticipated to stay away from such a risk (Legal Vision, 2016).

In the present situation, as it was clearly seen that Rebecca had full knowledge of the intoxication of Michelle so primarily was held to be negligence for such a loss occurred to her. Thus, as specified above she should have been liable to recover only a fixed amount of compensation from Michelle. But as it was clearly mentioned, that Rebecca after finding that she has a danger to her life asked Michelle to stop as she wanted to get down of the car. So she will be liable for contributory negligence.

Inference can be made from a case where it was held that it is the obligation of the injured person for choosing to sit with a drunken driver (High Court, 2010).

In this case court held that a person should take reasonable care to avoid such acts which a person can predict to cause harm to oneself or the other person (Reuters, 2014).

A remarkable case in this regard was Jones v. Livox. In this case it was held that contributory negligence requires a predictability of harm to one own self. An individual will be guilty of contributory negligence if he reasonably predicted and had known that if he doesn’t act as a reasonable man he will get hurt. And according to his calculations, he must take into account the possibility that the other person is acting carelessly.

Therefore, as Rebecca known that she and her friend Michelle both are drunk and if Michelle would drive the car accident may be caused. Rebecca should have stopped Michelle from driving by foreseeing an accident which might take place. So, Rebecca will not be able to ask full compensation for her injuries but can get a fixed percentage of compensation which has been specified under section 47 of the Civil Liability act.

Conclusion:

Therefore, it was concluded that Rebecca was contributorily negligent for her act as she known the fact that her friend Michelle was drunk as they both had wine together. Before sitting in the car with her she was aware that Michelle was high and was not in a position to drive. So she should have got inside the car. Rebecca should have asked Michelle not to drive because she known the fact that accident could have been caused. Rather when Rebecca sat into the car she voluntarily gave her consent to Michelle and she herself had not acted safely. After travelling a while, if she asked her friend to stop cannot be a plea to ask for compensation for her injury.

Negligence and contributory negligence both are included in the current situation. And Rebecca will get damages as specified under Civil Liability Act. The amount will be according to the amount of injury caused too Rebecca (Trindade, Cane, and Lunney, 2007).

 

References:

Harlow, C. (2005) Understanding Tort Law. 3rd ed. London: Sweet & Maxwell.

High Court of Australia (2010) Allen v. Chadwick.[Online] High Court of Australia. [Online] Available from: https://www.hcourt.gov.au/cases/case_a14-2015 [Accessed on 31/08/2016]

Klar, L., and Rainaldi, L.D. (1995). Negligence. Scarborough, Ont: Carswell.

Legal Services Commission (2013) Negligence.[Online] Available from: https://www.lawhandbook.sa.gov.au/ch01s05.php.[Accessed on 31/08/2016]

Legal Vision (2016) Riding High: What’s Your Responsibility If You Get in a Car With a Drunk Driver [Online] Available from:  https://legalvision.com.au/riding-high-whats-your-responsibility-if-you-get-in-a-car-with-a-drunk-driver/.[Accessed on 31/08/2016]

Reuters, T. (2014). The Law Handbook: Your Practical Guide To The Law In New South Wales. [Online] Available from:  https://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/pdf/Ch3_accidents_and_compensation.pdf. [Accessed on 31/08/2016]

The Law Hand Book (2016) Negligence, liability and damages. [Online] Available from:  https://www.lawhandbook.org.au/10_01_01_negligence_liability_and_damages/.[Accessed on 31/08/2016]

Trindade, F.N., Cane, P., and Lunney, M. (2007) The Law of Torts in Australia. 4th ed. South Melbourne: Oxford University Press.

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