Torts problem question - Case Study Example

Driver's Duty of Care and Breach. In Nettleship v. Weston, [1971] 3 W.L.R. 370 citing Glasgow Corporation v. Muir [1943] A.C. 448, 457, it was ruled that "if a driver goes off the road on to the pavement and injures a pedestrian, or damages property, he is prima facie liable. Likewise if he goes on to the wrong side of the road. It is no answer for him to say: 'I was a learner driver under instruction. I was doing my best and could not help it.' The civil law permits no such excuse. It requires of him the same standard of care as of any other driver.

'It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.' The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity." (see Richley (Henderson) v. Faull. Richley, Third Party [1965] 1 W.L.R.

1454; Watson v. Thomas S. Whitney & Co. Ltd. [1966] 1 W.L.R. 57). Applying the same principle to the instant case, Anna must, whether or not she is driving a car or a bicycle or motorcycle, whether in a road, highway, street, or bicycle path in a local park, as a driver drive in as good a manner as a driver of skill, experience and care, sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity. But Anna failed to exercise the duty of care incumbent upon her as a driver and a local park at that where it is expected that a lot of people and pedestrians would be walking about.

In Eyres v Atkinsons Kitchens & Bedrooms Ltd., [2007] EWCA Civ 365, the judge found a driver liable in negligence for personal injury sustained in a road traffic accident because prior to the accident the driver had been exchanging text messages on his mobile phone, and that it had been the driver's inattention through using his mobile phone that caused the accident. Likewise, in the case of R. v Payne (John), [2007] 2 Cr. App. R. (S.) 45, it was ruled that the driver was rightfully convicted because the driver allowed himself to be distracted whilst driving by using a mobile phone.

(See also Robertson v Klos, [2005] HCJAC 136). In the case of Anna, she was driving with only one hand and using her mobile phone with the other. Hence, Anna was negligent in her driving and in breach of her duty of care as a driver. Causation. To be able to claim against Anna for personal injury and/or damage to property under the law of tort, it is imperative that causation must be established. There is causation when both factual causation and legal causation are present. Factual causation refers to the nexus between the defendant's action and the claimant's damage (the 'but for' test) while legal causation refers to the break or 'novus actus' in the chain of causation.

Applying the 'but for' test applied by Lord Denning in Cork v Kirby MacLean [1952], and illustrated in Barnett v Chelsea and Kensington Hospital Management Committee [1969], Brian would not have suffered personal injury (significant cuts and a bad sprain to his ankle) and damage to property (his Walkman damaged beyond repair) but for failure of Anna to