Tort Law

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Question 1      [15 marks]
 
Mary has been at a party. She has been drinking heavily and cannot walk properly. She walks home and crosses the road without looking for traffic. Bob is driving his car down the road, he does not see Mary because he is changing a CD in his car. He hits her and injures her, breaking her leg. Because of the delay caused by the traffic accident, another driver, Tom, is stuck in traffic. He is an electrician and because he cannot get to his next repair job of fixing the refrigerators in Sam’s restaurant, Sam has to destroy $ 5 000 worth of meat which goes bad. Advise what legal liabilities arise out of this situation. Cite case authority where relevant.

ISSUES
Is Bob liable to Mary and to what extent?
Does Bob have any defenses?
Is Tom liable to Sam and to what extent?

LAW In this case we are dealing with tort law and more specifically negligence in tort law. Negligence in tort law requires the plaintiff to prove the following: * The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff); * The defendant violated that duty;

* As a result of the defendant's violation of that duty, the plaintiff suffered injury; * The injury was a reasonably foreseeable consequence of the defendant's action or inaction.
http://www.expertlaw.com/library/personal_injury/negligence.html

Negligence liability normally rests with the party that owes a duty of care. If there has been a breach of this duty, which has resulted in financial loss, personal injury or otherwise, then the negligent party may be liable to pay compensation to the innocent party. The defendant must be proved to have owed the plaintiff a duty of care ( Donoghue v Stevenson). For example it is well established that drivers owe a duty of care to other road users. The defendant must also be shown to have been negligent, to not to have complied with the standard of the reasonable man, taking into account things like; likelihood of harm ( Bolton v Stone), the seriousness of the harm, if it occurs ( Paris v Stepney Borough Council) and the effort or expense required needed to avoid the harm ( Latimer v AEC). The third essential is causation. This is where the plaintiff must show that the defendant’s acts have caused the loss, using the “but for” test ( Cork v Kirby MacClean) and taking into account the rule of proximity, that is, that the defendant is liable only for harm that was reasonable foreseeable ( Wagon Mound No 1). In cases of physical injury, as long as some harm was foreseeable, a defendant is liable for all types harm suffered by a plaintiff, including those that were not foreseeable.  This is known as the 'egg-shell skull' rule.  

The eggshell skull rule is a legal doctrine that says the wrongdoer (the defendant) takes the victim in the condition in which they find him. There is no allowance for an already weakened state of the injured party. If a defendant negligently injures someone, the defendant is responsible for all the consequences, whether they were foreseeable or not.

APPLICATIONS
Bob is liable for the injuries to Mary due to negligence. Bob will need to pay for damages both general and special for the injuries sustained by the pedestrian Mary. These damages will cover medical expenses, loss of income, pain and suffering, disfigurement, loss of consortium, and any other loss caused by the accident. Civil liability for pedestrian car accidents revolves around the principles of negligence. The injury Mary sustained is a result of negligence of the driver of the vehicle, Bob, who had a duty of care towards pedestrians and cars alike, on the road at the time of the accident. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require...
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