The Negligence In Term Of Law - Essay Example

 The Negligence In Term Of Law The paper shall be completed according to the civil law and the tort law principles laid down in the assignment. The assignment consists of a factual problem where a lot of parties are involved therefore the paper shall look at the rights and liabilities of each every party individually. Let us go back to analyze the facts of the case. After downing, three shots of tequila, Marvin, and his friends decided to ride back home. Marvin was the rider while his friend Norton was the pillion rider. While riding the bike through the UC car park Marvin accidentally hit a pothole which did not damage the bike but injured Norton, who aggravated an injury caused previously in a soccer match, thus causing him to go for a complete shoulder reconstruction. It is clear from the above that it was a serious case of injury which happened to Norton who was depending on Marvin for riding back home safely on the bike. Since Marvin was riding the bike it was his responsibility to take care of himself and Norton. The above is a clear case of Negligence. Let us first define negligence as understood under tort law: “those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision”1 The above definition has been taken from the case of Ryland vs. Fletcher. According to the Civil (Wrongs) Act 2002 Section 42, the first part of negligence is the duty of care: “the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose”2 After ascertaining that there was a duty of care, the plaintiff has to prove that there was a breach of such duty, which resulted in an injury to the Plaintiff.3 In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. The defense of Marvin would be the appropriate precaution of risk, and before concluding that argument let us define and precaution of risk as covered in the Act: “A person is not negligent in failing to take precautions against a risk of harm unless— (a) The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.”4 Marvin has the defense of saying that he took enough precaution against the risk, but the pothole was in such a place that any other person in a similar situation would not have been able to avoid the accident. Along with this fact, the bike did not get damaged and Norton faced injury due to the fact that he had already been injured at the spot where he fell, which resulted in the aggravation of such injury. The right of Marvin is to sue the University of Canberra under the common law principle for not taking enough precaution in order to avoid the pothole where the bike crashed. He can transfer the liability to the college by arguing on the basis of negligence on the part of college through not maintaining the University campus in the right order. The liability of Marvin is the fact that his actions caused injury to Norton, and on top of that, he was drunk while he was riding. He did not take enough care and precaution when he knew while being drunk he should not have ridden the bike. Moving onto Norton, let us first deal with his liability. Norton was the one who introduced Marvin for drinking to drown his sorrows. From this point, it can be inferred that he was totally aware of what was going on in the mind of Marvin. He was very well aware that he was going to get drunk after 3 shots of tequila and that after this he would have to ride back home. Since Norton was aware of this fact, he should have taken enough care for himself to not go with Marvin as Marvin was drunk after the tequila shots. Even then, after what had happened he happily decided to go with him back from college knowing that his rider was completely drunk and there could have been a chance of an accident. This is a clear example of Contributory Negligence, which is explained as follows: “a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant”5 Applying the law to the facts, we see that the liability of Norton rests with him being negligent on the point that he went with a rider who was already drunk, which invited trouble for him. The right of Norton would be to sue Marvin on his failure of not taking enough duty of care to avoid the accident. Definition of duty of care is already mentioned above, and applying the law to the facts, we see that Marvin did not take enough care with respect to the life of his co-rider, and being in a drunken state added to his vows. Marvin should have been more careful since his action caused injury to Norton. The defense of Norton with respect to contributory negligence is that he was not in the vicinity to apply that logic while he was the pillion rider of Marvin. Norton did not explicitly contribute to the negligence of Marvin, as none of his actions prove to have caused the accident. He was innocent while the accident happened, and was not anywhere close to influencing the situation in any manner whatsoever. The University of Canberra is also liable to Norton to the point that they did not maintain their parking lot, and the pothole caused damage to Norton, which could be regarded as the primary cause of his injury, as the University had a duty of care towards Norton and the other of having a secure parking lot without any scope for injuries. Moving on to the next person who is Stephanie, she is involved in the case from the point of Marvin. Her liability would rest with regard to the fact that she caused him the immense economic loss as well as defrauding him by not buying the bike from him. She promised him duly that she would purchase the bike, while later onwards she backtracked, which left a deep scar on the mental health of Marvin. Applying the law to the facts, it can be concluded that she is liable for the whole incident which occurred, starting with Marvin getting drunk, drowning his sorrows and then crashing the bike which resulted in injury. Her defense would be that she is too far from the cause of action to have had any direct impact on what happened with Marvin and Norton. She was not liable in direct consequence, and she can conclude that she was not Marvin's nearest neighbor when the incident happened with him. She has the right to appeal and claim innocence in this case as she can tactfully plead that she is nowhere involved in the happening of this incident and that her causing Marvin economic loss and mental instability are too remote reasons which are not suitable to be inserted as a cause of the incident which happened. Work Cited Donoghue v Stevenson [1932] UKHL 100 Bolton v Stone [1951] AC 850 http://legal-dictionary.thefreedictionary.com/contributory+negligence http://law.campbell.edu/lawreview/articles/30-1-81.pdf Butterfield v. Forrester, 11 East. 60 http://legal-dictionary.thefreedictionary.com/negligence Read More