Tort of Negligence in English Law - Case Study Example

Tort of negligence in English law (English legal system) Issues: The main issue in hand in this case is that of accidents caused by drunken driving and negligence, not amounting to murder or manslaughter. Yet, the defendant in this case, Marcus could be held liable for causing grievous injuries to the applicant, Fred, including the need for amputation of his leg, causing permanent injury and loss of income in future. There could be a demand for compensation for GBH and loss of future incomes for Fred. However, the mitigating factor in this case could be the contributory negligence on the part of the applicant, Fred, in not wearing seat belt that could have significantly reduced the impact of the collision and perhaps reduced the degree of injuries sustained by him. Another mitigating factor is that the defendant, Marcus himself, has been seriously injured in this collision and needs hospitalisation and medical attention. The issues that impinge upon this accident and the quantum of compensation payable to the applicant, Fred hinges on the following facts: Marcus was driving the car in a drunken state, violating English laws on driving conduct. Although he was aware of the fact that his driving conduct could cause accident and injuries both to himself and others on the motorway, he did not refrain from driving after drinking. The cause of accident is negligence and disorderly conduct arising out of drinking and driving, transgressing traffic regulations by jumping the red light and crashing into Fred’s vehicle. There are no reasons to believe that Fred has been negligent, except the fact that he was not wearing the seat belt at the time of occurrence of the accident. Marcus’ accomplice, Sarah could also be prosecuted for aiding and abetting the crash – she could have prevented Marcus from driving but being in a drunken state herself, she refrained from doing so and could be charged as an accomplice to this tort of negligence Rules: Duty of Care: As per “The Road Traffic Act 1988”, section 4(1) makes it an offence to drive or attempt to drive a mechanically propelled vehicle on a road or public place when unfit through drink or drugs.“ (Motoring a, 2010). Thus, the duty of care to other persons forms the basis of this law. The element of duty of care is well reflected in this case. Marcus does have a duty of care to drive his vehicle safely even if he and his co-passenger were under the influence of alcohol. “In some circumstances, a person may be in such a relationship with a third party as to have a duty to control the third partys conduct in order to prevent harm to him/her. These include employer and employee, parent and child, gaoler and prisoner, mental hospital and patient and even car owner and an incompetent or drunken driver.” (Negligence-duty of care, 2010). Apparently, this duty of care has been breached, and the accident has been due to the violation of breach of duty of care, and negligent driving on the part of the defendant. Further, the proximate cause of accident and injury to Fred, the applicant, has been the breach of duty of care and this could be directly linked with his negligent and disorderly drunken conduct. In the case of Regina v. Ross Robinson [2009] EWCA Crim 450, a similar case of accident under the influence of liquor occurred. In passing the judgement, the learned Court observed that “We uphold the starting point of 12 years but we give full credit to the applicant for his plea by reducing the sentence from one of 9 years to one of 8 years imprisonment.” (England and Wales court of appeal (criminal division) decisions, 2009). Causing grievous bodily harm (GBH): Besides the duty of care, observance of traffic rules also forms major criteria for determination of the quantum of punishment. In this case, besides the negligence aspect of causing grievous bodily harm to Fred, Marcus could also be held responsible for violating basic traffic laws by jumping the red light. While this may be seen as a careless action on the part of the driver, and law may demand an explanation. It may sometimes be “necessary to go beyond this explanation and consider whether the particular facts of the case warrant a charge of careless or dangerous driving.” (Definition: Driving without due care/reasonable consideration & careless, 2004). Again in the case of Regina v Andrew Stranney 2007] EWCA Crim 2847, the case relating to dangerous driving and counts of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 was taken up . In this case, the courts sentenced the defendant “to a term of three-and-a-half years imprisonment for each of the section 20 offences and to 21 months imprisonment for the dangerous driving. All the sentences were concurrent. He was also disqualified from driving for five years and until an extended test is passed.” (England and Wales court of appeal (criminal division) decisions, 2009). Thus the issue is a serious one since it involves many apparent violations besides careless and drunken driving. Applications: It is necessary that Marcus pleads guilty to the charges levelled against him. However, he could also plea that the accident occurred since he was under the influence of alcohol while driving and when the accident occurred, hoping for a lighter sentence. However, only 7tests conducted on him and his accomplice Sarah could determine the exact quantum of alcohol present in their bodies, to understand the contribution of alcohol in this accident. In this case, the application of UK Road safety laws and also law of torts could be brought into action in order to determine the extent of violation and determination of suitable punishment to Marcus and his accomplice Sarah for causing grevious bodily harm (GBH) to applicant Fred. Mitigating circumstances: The mitigating circumstances that could be seen in this case are that Marcus himself has been seriously injured in the accident, and this could mitigate the GBH aspect. Again, the fact of contributory negligence on the part of applicant, who did not wear seat belt while negotiating a motor way, could also influence the extent of punishment to Marcus and Sarah. “Contributory negligence is the legal doctrine stating that if a plaintiff in a civil case involving negligence was also negligent in any way, they cannot receive any compensation for the defendant. Even if a person suffered significant injuries primarily as a result of another party’s negligence, contributory negligence principles state that they cannot recover damages from that party.” (Contributory negligence, 2010). Conclusion: In a case of this kind, where a near fatal road collision has occurred due to drunken negligence and disorderly conduct by one party, the exact role of alcohol in this accident has first to be determined by law. In any event, Marcus needs to plead guilty and accept the verdict which, depending upon the perspective taken by the Courts, could also include prison term, fines/penalties besides entailing cancellation of his driving licence, if so determined by the competent court. Reference List Contributory negligence, 2010. [Online] Criminal Law Lawyer Source. Available at: http://www.criminal-law-lawyer-source.com/terms/contributory_neg.html [Accessed 20 November 2010]. Definition: Driving without due care/reasonable consideration & careless, 2004. Traffic Answers Forum. Available at: http://www.traffic-answers.co.uk/forum/index.php?topic=513.0 [Accessed 20 November 2010]. England and Wales court of appeal (criminal division) decisions, 2009. [Online] Bailii. Available at: http://www.bailii.org/ew/cases/EWCA/Crim/2009/450.html [Accessed 20 November 2010]. Motoring low, 2010. [Online] Motoring Low. Available at: http://www.motoringlaw.co.uk/driving-offences.htm [Accessed 20 November 2010]. Negligence-duty of care, 2010. [Online] Law Teacher. Available at: http://www.lawteacher.net/tort-law/lecture-notes/negligence-duty-lecture.php [Accessed 20 November 2010]. Read More