2014 ZA Question 7 -MIX (Def)
Jason, aged 19, was left at home to look after his 13 year old brother, Sam. Sam and Jason were watching
television and Jason was drinking beer and smoking cannabis (a drug) when Jason's friend, Tony, arrived at the
house in a car. Tony boasted that he had taken the car from the front pavement of a house located about fifteen
minutes away from Jason's house. The car keys had been left in the ignition. Tony persuaded Jason and Sam to
go for a drive in the car. The car was a new, top of the range sports car and Tony (who was a learner driver) had
some difficulty in controlling it - especially since Sam was urging him to go faster and faster. After 10 minutes in
the car, Jason realised that they were being followed by a police car and informed Tony who panicked, swerved
and drove into a tree. Tony was uninjured but Jason, who was in the passenger seat and was not wearing a seat
belt, was seriously injured, suffering permanent damage to his spine. Sam emerged from the car crash uninjured
but was knocked down and seriously injured by a train at a level crossing when he escaped from the car and
tried to run away from the police. There were warning signs at the level crossing but they were not clearly visible
and there were no barriers preventing entry on to the train track. For several months local residents had been
campaigning about safety near the crossing after a 60 year old man narrowly escaped being hit by a train. Advise
all parties of their rights and obligations in tort, paying particular attention to any defences that might be raised.
In advising, J will bring action against T for reckless driving which cause the accident result in T seriously injured,
suffering permanent damage to his spine and S will bring action against Local Authority for placing improper
warning sign and no putting any barriers preventing entry resulted in M knowing down and serious injured by
train at level crossing. In order for action to be successful. Both parties will first need to establish the tort of
negligence against potential Defendants. According to Lochgelly Iron v Mc Mullan, both parties will need to
prove on a balance of probabilities that there is an existing duty of care and the defendant breached it, causing
some damage to them and the damage is not to remote.
Frist issue whether the defendant owes a duty of care to claimants?
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. If no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
JvT
As a driver, who do you owe a duty of care to? Well in the case of Donoghue v Stevenson, court held although
manufacture and consumer may be in different part of world and never meet before, the duty is owed as
manufacture able to foresee that any negligence on his part with regarding to the manufacturing of product
would ultimately affect his consumer. Therefore, in applying this principle, it would appear that in the case of a
driver, a duty is owed to all other road users. The standard of care owed to other road users is that of a
reasonable driver. This was described in Nettleship v Weston as the standard to be expected of a competent
and experienced driver. In the case, the claimant was a friend of the defendant and was teaching her to drive.
Prior to such an arrangement the claimant had sought assurances from the defendant that appropriate
insurance had been purchased in the event of accident. On the third lesson the defendant was executing a simple
manoeuvre at slow speed when she panicked which resulted in the car crashing into a lamppost injuring the
claimant. The defendant was subsequently convicted of driving without due care and attention. Court held that
the duty of care owed by a learner driver to the public (including passengers) was to be measured against the
same standard that would be applied to any other driver.
Applying to the fact, J as driver owes duty of care to his passenger T following reasonable driver standard. Thus,
duty of care is establish.
S v Local Authority
Applying to the fact, Donoghue principle applied, duty is owed by local authority as it is foreseeable that any
negligence on their part in placing proper warning sign and putting any barriers preventing entry would
ultimately affect the people surrounding the place. Thus, duty of care is establish.
Jason, aged 19, was left at home to look after his 13 year old brother, Sam. Sam and Jason were watching
television and Jason was drinking beer and smoking cannabis (a drug) when Jason's friend, Tony, arrived at the
house in a car. Tony boasted that he had taken the car from the front pavement of a house located about fifteen
minutes away from Jason's house. The car keys had been left in the ignition. Tony persuaded Jason and Sam to
go for a drive in the car. The car was a new, top of the range sports car and Tony (who was a learner driver) had
some difficulty in controlling it - especially since Sam was urging him to go faster and faster. After 10 minutes in
the car, Jason realised that they were being followed by a police car and informed Tony who panicked, swerved
and drove into a tree. Tony was uninjured but Jason, who was in the passenger seat and was not wearing a seat
belt, was seriously injured, suffering permanent damage to his spine. Sam emerged from the car crash uninjured
but was knocked down and seriously injured by a train at a level crossing when he escaped from the car and
tried to run away from the police. There were warning signs at the level crossing but they were not clearly visible
and there were no barriers preventing entry on to the train track. For several months local residents had been
campaigning about safety near the crossing after a 60 year old man narrowly escaped being hit by a train. Advise
all parties of their rights and obligations in tort, paying particular attention to any defences that might be raised.
In advising, J will bring action against T for reckless driving which cause the accident result in T seriously injured,
suffering permanent damage to his spine and S will bring action against Local Authority for placing improper
warning sign and no putting any barriers preventing entry resulted in M knowing down and serious injured by
train at level crossing. In order for action to be successful. Both parties will first need to establish the tort of
negligence against potential Defendants. According to Lochgelly Iron v Mc Mullan, both parties will need to
prove on a balance of probabilities that there is an existing duty of care and the defendant breached it, causing
some damage to them and the damage is not to remote.
Frist issue whether the defendant owes a duty of care to claimants?
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. If no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
JvT
As a driver, who do you owe a duty of care to? Well in the case of Donoghue v Stevenson, court held although
manufacture and consumer may be in different part of world and never meet before, the duty is owed as
manufacture able to foresee that any negligence on his part with regarding to the manufacturing of product
would ultimately affect his consumer. Therefore, in applying this principle, it would appear that in the case of a
driver, a duty is owed to all other road users. The standard of care owed to other road users is that of a
reasonable driver. This was described in Nettleship v Weston as the standard to be expected of a competent
and experienced driver. In the case, the claimant was a friend of the defendant and was teaching her to drive.
Prior to such an arrangement the claimant had sought assurances from the defendant that appropriate
insurance had been purchased in the event of accident. On the third lesson the defendant was executing a simple
manoeuvre at slow speed when she panicked which resulted in the car crashing into a lamppost injuring the
claimant. The defendant was subsequently convicted of driving without due care and attention. Court held that
the duty of care owed by a learner driver to the public (including passengers) was to be measured against the
same standard that would be applied to any other driver.
Applying to the fact, J as driver owes duty of care to his passenger T following reasonable driver standard. Thus,
duty of care is establish.
S v Local Authority
Applying to the fact, Donoghue principle applied, duty is owed by local authority as it is foreseeable that any
negligence on their part in placing proper warning sign and putting any barriers preventing entry would
ultimately affect the people surrounding the place. Thus, duty of care is establish.
