The Standard of Care - Lab Report Example

LEEDS METROPOLITAN FACULTY OF BUSINESS AND LAW LEEDS LAW SCHOOL ASSESSMENT: First sit MODULE Law of Tort CRN: 10213 OF ASSESSMENT: Written Assignment COURSE(S): LEVEL: Four SUBMISSION DATE: 14 January 2011 TITLE: Advice on Personal Liability: Road Accident NUMBER OF WORDS: 1368 including title page and bibliography 1215 words – essay and footnotes Name/student number – please complete and check word count including title page – the other word count for the essay should be correct even with your changes. Two chief matters are in question here: Belinda’s legal obligation firstly to the local authority; and secondly to her long-standing friend, Ali. Both these parties will have to prove that Belinda owes them a duty of care, that she breached that duty, and that the breach thereof caused them consequential losses, not deemed too remote from her actions.1 The standard of care by which her actions will be measured is that required by a skilled and experienced driver.2 Belinda’s actions are likely to be assessed directly according to civil tort relating to negligence, and thus as a skilled and experienced driver, she will have to be proven to have acted in contradiction of her duty as such a driver. Both parties will need to show that their losses thus stemmed from her not fulfilling her obligations as a driver, directly. Belinda’s first option may be to consider the fact of contributory negligence: in this she may be eligible for a reduction in damages ‘...where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons ... having regard to the claimant’s share in the responsibility for the damage.’3 She may certainly be able to claim that Ali was partly responsible for her state of mind while driving due to the measures she had to take to help her long-standing friend, as his circumstances will have caused her to experience added stress. Thus he may be deemed jointly liable for damage to the property of the local authority. Further, in ordinary circumstances, volenti non fit injuria can provide a complete defence where the claimant voluntarily accepted the risk which led to the injury. In driving cases, however, liability cannot always be excluded because insurance cover for passengers is compulsory.4 To determine further Belinda’s possible responses, it needs to be established if any criminal proceedings were instituted for offences of dangerous driving:5 ‘A person drives dangerously when ... he drives far below what would be expected of a competent and careful driver AND it would be obvious to a competent and careful driver that driving in that way would be dangerous.’6 Dangerous driving by definition includes, unfortunately for Belinda, ‘... driving when knowingly deprived of adequate sleep or rest.’7 The offence of careless or inconsiderate driving is committed when a ‘defendant’s driving falls below the standard expected of a competent and careful driver.’8 In any civil proceedings, if Belinda had been convicted of any such offence, the determination of her responsibility would be affected by such convictions. Even if Belinda had been acquitted after such criminal proceedings, the evidence from these proceedings would still be able to be used in civil action. Burden of proof in criminal proceedings is ‘beyond reasonable doubt’ as opposed to the lower ‘balance of probabilities test’ used in civil proceedings.9 It is also advisable that a substantive response to any letters of claim be provided prior to the conclusion of any criminal proceedings, although the claimant(s) may argue that the civil claim is subjudice. Thus if Belinda is convicted, liability will be found in the civil claim and potentially result in a higher settlement being awarded than if the claim were settled without evidence of a conviction. Simultaneously, it must be noted that according to the Highway Code, a driver has to ensure that he is fit to drive and not drive when tired.10 Although breach of this provision is not a criminal offence it may constitute evidence of negligent driving.11 Property damage will most likely be the extent of liability Belinda has to the local authority. Liability will, though, almost certainly be established, even though Belinda was driving within the speed limit. A duty of care has been established for drivers and if Belinda did fall asleep while driving then the duty has been breached. She will be responsible for the costs of repair, a foreseeable loss.12 This may be subject to a reduction in damages if there had been any previous damage to the island/bollard. Efforts could be made to secure CCTV footage as evidence of previous damage. Nonetheless, this is most likely to be as simple as the claimants providing proof of damage and loss. In terms of her liability where Ali is concerned, the matter may be more complicated. Ali will have to prove Belinda’s liability with reference to the issue of causation. Medical reports will have to substantiate any claims he may have, and Belinda cannot effectively be advised until these reports have been examined, should liability then be established the amount of damages settled upon will depend on the degree and extent to which Ali has been affected. Given that Ali is known to have had a pre-existing nervous condition, yet continued to work under such stressful conditions may additionally be used to argue a case for contributory negligence, as mentioned in paragraph two of this paper. Such possibilities notwithstanding, it is likely that a judge would find that any psychiatric loss suffered by Ali may have been foreseeable to Belinda, in light of their long-standing relationship. Thus the ‘eggshell skull rule’13 or eggshell ‘personality’14 would apply, and Belinda would be required to compensate Ali for all consequences resulting from her actions, despite any pre-existing medical conditions. It is further unlikely that Belinda could institute a counter claim: the losses she incurred in taking Ali to work or the effect on her personal health are not extensive. There is insufficient information to conclude that there existed a contract – expressed or implied – between Ali and Belinda to indicate that Ali would repay Belinda for any losses incurred. Instead, a judge would perceive that Belinda was helping a friend, willingly. Belinda could find herself compensating Ali for loss of earnings, given that he would be able to provide evidence of such loss. Any future losses would be calculated on the basis of the ‘Smith v Manchester’ award.15 Again, though, the incurrence of the additional debt is likely to be considered foreseeable as the damage – Ali’s increasing anxiety – ‘... is of such a kind as the reasonable man could have foreseen.’16 Ali could realise that he would not be able to continue work and would fall into more debt. Settlement would not occur without proof of loss having been established. Belinda is best served by being advised to consider admitting liability17 as there is risk of litigation evident. If a part 36 offer is made, Belinda should seek further advice as to settlement. She should certainly, however, ensure that there is evidence of the claim before entering negotiations regarding settlement. The medical evidence of Ali’s diagnosis, with comment on causation and the effects of the accident would have to be forthcoming. Belinda would reserve the right to challenge such medical evidence.18 Generally, a medical expert should be jointly instructed.19 Ali should also have to provide evidence of loss of earnings. In this case, any statutory sick pay would be a non-recoverable benefit, and would not be deducted from any awarded damages.20 Belinda should be advised to inform her insurers immediately regarding the accident and potential claim or claims, provided she had not already done so. If she does have relevant and appropriate insurance cover, any compensation payable will be settled by her insurers.21 (1215 words including footnotes) BIBLIOGRAPHY Books Archbold, 2009 D Harris and D Campbell and R Halson, Remedies in Contract and Tort (2nd edn Cambridge University Press, Cambridge 2005) G Slapper and D Kelly, The English Legal System: 2009 – 2010 (10th edn Routledge- Cavendish, Oxon 2009) J Steele, Tort law: Text, Cases and Materials (OUP, Oxford 2007) N McBride, and R Bagshaw, Tort Law (3rd edn Pearson Education Limited, Essex 2008) Websites Bailli: UK Government website < http://www.bailii.org/uk/cases/UKPC/1961/1.htm> Crown Prosecution Service: UK Government website . Read More