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

Question

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:

c If it is established that Andy has breached a duty of care owed to Carl, explain:

i the relevant test for establishing causation in fact;

ii the test for establishing causation in law;

iii whether Dr Eric’s negligence will have any effect on Andy’s liability for causing Carl’s blindness.

Explanation / Answer

i. The relevant test for causation in fact is what if the following negligence was not done by andy and the test here is of "but" and "if" i.e. if the negligence did not occur , the injury could have occured or not. Now in this case the causation of fact is that if Andy would not have slept , carl would not have bumped but was getting blind a direct effect of andy's negligence. this is where the fact of the case needs to be determined.

ii. The relevant test for causation in fact is the duty that Andy owed to carl while driving the car and the breach of duty and the injury caused due to breach of this duty, and causation and forseeability in the breach of duty. In this case the injury caused to carl was not directly or even proportionaly related to the breach of duty that andy owed to carl while driving. In this case the injury caused was too remote to be directly related to the breach of duty. Thereby in this casae the causation in law is not directly related to the injury caused.

iii. andy is remotely liable for carl's blindness because the hitting of car lead to the surgery through which glass was needed to be removed from Carl's eye. The doctor's negligence was the direct and foreeable cause for Carl's blindness. Here in this case Dr. Eric's negligence will directly affect Andy's liability as Andy's liability will definitely reduce as Eric will be directly liable for Carl's Blindness though Andy will be liable for negligently driving the car.

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