Dear Samantha
I am writing to you from Smith & Jones as there has been a recent incident that involves Andrew
as as Louise. Andrew and Louise both are wanting to pursue a claim as they believe you were
negligent, and it is highly likely that you will be found liable. In this letter, I will explain to you the
most likely outcome and tell you why by explaining the law to help better your understanding.
Negligence is the act of failing to exercise the appropriate actions that are expected by a
reasonable person. The court will determine if you were negligent and if your negligence has
caused damages to others. To have a claim, the claimant must prove that have been negligent and
that your negligence caused harm. To prove negligence the claimant must prove three factors
which are, a duty of care, breach of duty, and if there was damage caused. I will explain these
individually and apply them to your case below.
Duty of care is the term used to refer to the obligations of an individual who owes a “duty of care”
to another induvial or a group. An example of this is a nurse and patient, a doctor must take care
of their patient and are responsible for them) or in your case, it would be a driver and pedestrian.
The driver (you) owes a duty of care to pedestrians, in your case, it would be Louise and Andrew).
A case used to define a duty of care is Donoghue V Stevenson (1932), it was ruled that the
defendant owed a duty of care to their neighbour, (neighbour test or neighbour principle). The
claimant’s friend bought a ginger beer for the claimant and when drinking it the claimant fell sick,
it was later discovered that there was a decomposing snail inside the drink which caused the
claimant to be very sick. The defendant was found liable, and this case is used constantly to
explain the duty of care. Another case is Robinson V Chief Constable of west Yorkshire, the
claimant was a 76-year-old woman who was injured when she was knocked to the ground by a
drug dealer trying to flee arrest. When the claimant was on the ground, two police officers
attempting to arrest the drug dealer fell on her. She filed a negligence lawsuit against the police.
The trial judge applied the Caparo test for duty of care and found that it was reasonably
foreseeable that the claimant would be harmed as a result of the officer's actions.The Caparo test
consists of three tests, to see if the incident was foreseeable if there is proximity in the
relationship, and if it was just, fair and reasonable. In your case you will check out to all three. This
because you could have foreseen the accident; The court will see that this was foreseeable as it is
illegal to drive whilst texting, this is due to the danger and risk factors involved when the driver
i.e., you, are not focused on the road ahead but rather on the content of their phone. Knowing this
there could be anything on the road. There could be anything on the road and if the driver is not
paying attention, there is a crash more likely to happen and other risks. Drivers must have their full
attention on the road ahead as it is their duty to the pedestrians, other drivers, and themselves to
take precautions whilst driving. There was enough proximity as you are the driver and Andrew is
the pedestrian and it will be seen by the court that applying this will be just, fair and reasonable.
Using precedent, we can refer it to your case, the court will see that you owed a duty of care to
the claimants.
The second factor is to see if there was a breach of duty, this basically refers to if you have
breached the duty of care owed. You owe a duty of care to the pedestrians as a driver, but you
have breached your duty and ended up causing them harm by being negligent. When determining
whether there was a breach of duty, the court will also consider whether there were any risk
factors that could either increase or decrease the standard of care expected. These factors include
whether or not the claimant has any special characteristics, the size of the risk, whether or not
appropriate actions have been taken, if or not the risks were known at the time of the accident,
and if there was a public benefit taking the risk. Special characteristics are considered if there is
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, any extra care needed to be provided. In the case Of Paris V Stepney Borough council (1951), Mr.
Paris was already blind in one eye and was not provided with protective goggles to protect his
eyes. Due to this Mr. Paris ended up blind in both eyes, the court had held that the employees
should have provided the right protective equipment especially due to the fact the claimant was
already blind in one eye, they were found liable. This would possibly not apply as Andrew did not
have special characteristic. The second factor is the size of the risk, the amount of precautions
increases when the risk increases. Driving whilst texting is a big risk, and the court would see that
you should have taken more precautions. Andrew was also up on the ladder, this would have also
been another great risk as his damages will be even more serious. When the court looks into if
there were appropriate actions done, they would see this was not the case as you carried on
driving knowing the risk which links to the 4th factor (if the risk was known). The judge will see
that the risk was foreseeable and that you did not take the right precautions to prevent the
accident. The last factor would see that there were no benefits to the public in taking the risk. It is
clear to see that you have breached your duty as you owe it to pedestrians to drive safely in order
to not harm anyone, but you were texting while driving. The action of your texting while driving
was negligent and due to this action, it caused you to crash into a pillar harming both Andrew and
Louise. If the consequences were foreseeable and you still acted in a manner that would likely
cause harm, then you would have breached your duty. In the case of Blyth V Waterwork, the court
found that the company had done everything a reasonable person could do and that the incident
was just an accident. This case is used to lay down the key principle of negligence. In your case, the
court will see that you were negligent and that you also breached your duty.
The third factor is to see if there was damage caused and, in your case, there was, your actions
caused Andrew to have a broken leg and arm. The applicable principle is whether the injury or
damage was reasonably foreseeable as a result of the original negligent act or omission. It was
foreseeable that a crash was likely and that someone could have an injury due to the crash. This
shows that you have caused damage. Both causation and remoteness of damage must be proven
in order to prove there were damages. Causation is if the breach of duty is what caused the
damage and remoteness of damage is if the damages are not too remote. The court will determine
that the damages caused to Andrew are 100% your fault as he did not do anything to burden
himself more or do anything negligent. However, if the court did find that he has caused more
harm he will not be compensated for that, this is not likely to happen as Andrew was just
conducting normal activities and was not putting himself in danger.
Factual causation determines whether the damage would have occurred but for the defendant's
omission or act. In the case of Barnett v. Chelsea and Kensington Hospital Management
Committee (1969), Mr. Barnett visited the hospital complaining of abdomen discomfort and
vomiting; the nurses called the Doctor, who told her to discharge the patient. Mr. Barnett died of
arsenic poisoning five hours later. There was evidence proving that even if the doctor had
examined Mr. Barnett, there would have been nothing that could have saved him due to how
lethal the poison was. As the but for test had shown, even if the doctor had examined Mr. Barnett,
he would have died either way. Referring to this case and the “but for” test, but for you not been
texting while driving you would not have crashed and harmed Andrew. This simply shows and
states that if you not committed the actions that had been acted out, Andrew would have been
fine and there would not be an injury o start off with.
Legal causation occurs when the defendant's act is an active and long-term cause of the
consequences. Your act must make a significant contribution to the outcome. If there is a novus
actus interveniens (new act intervening), which may break the chain of causation is only significant
for negligence. The test to be used (if applicable) is whether the harm or injury was a reasonably
foreseeable result of the initial negligent act or omission. You would have been the sole cause of
Andrew's injury, and you were able to foresee the risk which has now led to him causing a long-
term injury. Contribute negligence is when the defendant has contributed to the negligence,
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