Question 2 Andy and his brother Bob are students. They work nights in a factory

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Question 2

Andy and his brother Bob are students. They work nights in a factory to earn some money to supplement their student loans.

After they had completed a 12-hour shift, Bob, a fully qualified driver, said that he felt ill. Andy, a probationary driving licence holder, offered to drive them both home in Bob’s car. Although Andy felt very tired, he proceeded to drive. Andy was fully insured and the car was correctly displaying P-plates.

On the journey home, Andy fell asleep and the car drifted across the road into the path of a van being driven by Carl. Carl saw the car Andy was driving coming towards him, so he swerved to avoid a collision but drove onto the pavement and collided with a lamppost. Carl’s van was damaged and the windscreen smashed.

Carl was taken to Princess Margaret Hospital for treatment. He was seriously injured and needed an operation to remove some glass from one of his eyes. Dr Eric operated on Carl but carried out the operation negligently and, as a result, Carl is now blind in one eye.

Required:

a Applying the test from Caparo v. Dickman (1990), explain whether Andy owes a duty of care to Carl.

b If it is established that Andy owes a duty of care to Carl, explain:

i the test which will be used to establish whether a defendant has breached a duty of care owed;

ii whether Andy has breached his duty of care.

Explanation / Answer

A.

No this is not applicable as per Caparo v Dickman which is mandated when there is a direct relation for the cause of damage.

Here the damage was inititated due to poor driving and negligence while driving but the accident occured as Carl too the responsibility of avoiding an accident there by meeting with another. So, the responsibility is not direct on Andy. And as the operation was faulty and that actually caused the serious damage and lead to the loss of his eyes.

So it might be transferred to Dr Eric, but as a operating practitioner the cases of negligence is in many cases immune .

B.

If it is established then

1. Yes, partially, as the care is on his part to drive sensibly for the safety of self and others as a probationary driver falls on his shoulder.

2. Again partailly as he slept and caused the accident to happen, but there was no collision of Andy's car and Carl's , so proving that, he was negligent and breached his duty is hard to prove, the losing of control can be attributed to bad road, stray animals and many other, so proving this would be tough unless Andy affirms himself of this breach.

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