Essay
Tort Law Problem Question
- Module
- Law (LAW1051)
- Institution
- Durham University (DUT)
Tort Law Problem Question
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By: aoifejmoore • 6 months ago
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Word Count: 1502Advise the parties (Bashful, Sneezy and Grumpy).
For Bashful, Sneezy and Grumpy, to succeed in their negligence claims, they need to be able
to prove that Dopey owed them a duty of care which has been breached, consequently
causing them loss. There also must be no applicable defences. Each of the claimants will be
advised individually on their likelihood of making a successful claim in the tort of negligence.
Bashful v Dopey
On one hand, Dopey clearly owed a duty of care to Bashful to drive according to that of the
reasonable person due to her assumption of responsibility to give him a safe ride home.
However, following Dann v Hamilton1 she failed to “measure up to the standard of care that
the law requires”2, breaching this duty of care, because she chose to drive and give this
offer when intoxicated causing him to crash the car into another. Dopey’s breach caused
Bashful loss as he is subsequently severely injured. However, there are applicable defences
which impact the possible remedy for Bashful.
Following Morris v Murray3 Bashful’s claim against Dopey would not succeed due to the
significance of the complete defence of volenti non fit injuria or put simply, consent.
Although Dopey advised Bashful that the lift was at his “own risk”, Bashful voluntarily and
actively chose to get into the car despite full knowledge of the nature and extent of the risk
deriving from Dopey’s intoxication which was at such an extent that she was very likely to
1
[1939] 1 KB 509
2
Ibid p 701
3
[1991] 2 QB 6
1
, Word Count: 1502
be negligent. It is important to note that, as Fox LJ held in Morris v Murray4, Bashful’s own
intoxication did not render him unable to appreciate the foreseeability of the risk and
consent to it. However, due to the Road Traffic Act 1988 s149(3), the application of the
voluntary assumption of risk (consent) in relation to passengers in road traffic accidents is
excluded and therefore not arguable in this case. Rather, following Campbell v Advantage
Insurance Co Ltd5, it would be deduced that Bashful was contributorily negligent. Bashful
meets the three requirements required for determining the existence of contributory
negligence as established in Froom and Butcher6. Firstly, Bashful failed to exercise
reasonable care for his own safety as he had knowingly allowed himself to be driven home
despite Dopey’s inebriated state and he failed to meet the statutory duty to wear a seatbelt,
further suggesting that he had accepted the nature and extent of the risk that he had been
exposed to. Secondly, these actions contributed to the damage because Bashful could have
found an alternate route home or at the very least, decided to wear a seatbelt, which is
proven to provide protection in a potential car crash. Had Bashful worn a seatbelt, he could
have prevented the serious injuries incurred as he wouldn’t have been thrown through the
windscreen. Lastly, in considering what would be a just and reasonable reduction from the
reward at claim, following Campbell v Advantage Insurance Co Ltd7, it should be reduced by
30%. This is because in parallelism to this precedent, Bashful clearly didn’t give his decision
much thought and failed to where a seatbelt. However, Bashful is more individually
negligent because he, unlike the claimant in Campbell had spent the entire night with Dopey
and was aware of how much she had had to drink, increasing the percentage the reward is
reduced by 10%.
4
Ibid, Fox LJ, p16
5
[2020] EWHC 2210 (QB)
6
[1976] 1 QB 286
7
[2020] EWHC 2210 (QB)
2
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