The duty of care is related with the circumstances and the relationships in which it has recognized by the law as resulting in a legal duty to take care. On the other hand, if such care is not taken, it may result in the liability of the defendant to pay damages to the other party, to whom injury or loss has been caused as a result of such breach of duty (Topp v London Country Bus, 1993). Hence, in such cases, the claimant is under a legal obligation to establish that the defendant had a duty of care. To find out the presence of duty of care in cases involving personal injury or damage to property, the neighbor test is used. This test was originally provided by Lord Atkins in Donahue v Stevenson (1932).
Application: In the present case, it can be said that it was reasonably foreseeable for Michelle that her actions may result in causing injury to Rebecca. Any driver would have known that in case of an accident, the passenger may suffer serious injuries.
According to this test, there should be reasonable foresight of harm, and a relationship of proximity should also be present between the parties (Overseas Tankship Ltd. v Morts Dock & Engineering Company Ltd., 1961).
While deciding if the defendant had a duty of care towards the plaintiff, there are a number of legal principles that considered by the court (Bourhill v Young, 1943). For this purpose, the plaintiff is required to establish that the:-
- Defendant had a duty of care to the plaintiff
- There has been a breach of such duty by the defendant; and
- The plaintiff had suffered an injury or a loss due to the actions of the plaintiff which resulted in the breach of such duty.
Application: The standard of care that can be applied in this case required Michelle to be careful while driving the car. But Michelle was quite drunk when she was driving the car. She had taken a lot of wine before the show. Hence, the standard was not met and as a result, there was a breach of the duty of care.
The issue in this question is related with causation. The law provides that there should be a connection present between the alleged negligence on the part of the defendant and the hound that has been suffered by the plaintiff. However, this is a question of fact. A particular articulation related with causation is the "but for" test. It has to be seen if but for the actions of the defendant, the harm suffered by the building would not have taken place.
In this case, Rebecca has suffered serious injuries and broken her leg when the car being given by Michelle met with an accident. In this case, Michelle was driving the car under the influence of liquor. Hence it can be said that Michelle was negligent while driving the car. Similarly, the injuries suffered by Rebecca can be described as the direct result of the negligence of Michelle in driving the car under the influence of liquor. Hence, the injuries suffered by Rebecca were the direct result of the Michelle’s negligence.
Rule: The law of tort provides that contributory negligence can be described as such behavior of the claimant as a result of which, it can be said that the claimant had also contributed to some extent in the injuries suffered by him or her. As a result of the fact that the claimant had also failed in meeting the standard of care that would have been made by any other reasonable person under the circumstances, for the purpose of avoiding the loss of the injury that has been suffered by the claimant. Hence, when such circumstances are present and the claimant had also contributed in the loss on the injury, the defendant can rely on the defense of contributory negligence. Therefore in such cases, the defense of contributory negligence is available to the defendant only if the defendant is in a position to establish that there was some fault present on part of the claimant also. The defendant has to establish that there was some fault of the defendant, which had contributed in causing the injury or the loss suffered by the claimant.
Application: in the present case, when Rebecca and Michelle went to see the Oprah Winfrey show, there was a delay in starting the show as there was a ticketing issue. In order to parse time, both of them had consumed wine while waiting for the show to start. Rebecca was well aware of the fact that on their way back home, Michelle would be driving the car. Still, Rebecca decided to drink wine with Michelle and she also decided to ride in the car being driven by Michelle. Although she was aware of the fact that Michelle had drank wine.
Rule: The defense of volenti non fit injuria has limited application under the tort law. The translation of this latter phrase means that when a person has volunteered, no harm is done (Nettleship v Weston, 1971). This defense is applicable as a complete defense and absorbs the defendant of all liability (White v Blackmore, 1972). The requirements of voluntary assumption of risk that it should be voluntary, and exhibited the present and it should be made after having complete knowledge regarding the nature and extent of the risk (Morris v Murray, 1991).
Application: In Dann v Hamilton (1939) the court had stated that the defense of volenti non fit injuria is available in such cases when the drunkenness of the driver is obvious and as a result, it can be concluded that an obvious and evident risk existed and satirist has been accepted by the defendant, knowingly. In this case, the defense of volenti non fit injuria is not available to Michelle.
Bourhill v Young  AC 92
Donahue v Stevenson (1932) AC 562
Morris v Murray  2 QB 6
Nettleship v Weston  3 WLR 370
Overseas Tankship (U.K.) Limited v Morts Dock & Engineering Company Limited (New South Wales)  UKPC 2
Topp v London Country Bus  1 WLR 976
White v Blackmore  3 WLR 296