Question 2 a Critically analyse the development of ‘duty of care’ in the tort of
ID: 450324 • Letter: Q
Question
Question 2
a Critically analyse the development of ‘duty of care’ in the tort of negligence. (20 marks)
b On 31 December 2014, Ian was delivering heavy wardrobes for H & Co Ltd, furniture manufacturers. His friend George went with him.
Ian was driving his own van. Ian’s contract stated that he was self- employed but required him to work only for H & Co Ltd and to obey the company’s orders. He could choose when to work and when to take holidays. However, if H & Co Ltd wanted him to work when it was inconvenient, he could not delegate the work to anyone else. Although his van had to be painted in the company’s colours, Ian was responsible for its maintenance.
Ian was anxious to finish work at 5.00 pm as he was holding a party that evening. George was to be one of the guests.
At 4.00 pm, they still had one delivery to make. The road they needed to use was closed, due to roadworks, and the consequent diversion would mean that they would be working late. Ian suggested taking a short cut, but this would involve driving the wrong way down a short one-way street. George agreed because he was also looking forward to the party.
Half way along the one-way street, there was a junction with a side road. Jane was driving her car along the side road and began to turn onto the one-way street just as Ian reached the junction. She did not expect a vehicle to be approaching from the wrong direction. Ian’s van collided with Jane’s car.
The front of the van was damaged. George, who was not wearing a seat belt, was thrown forward against the windscreen, which shattered, and he suffered serious cuts to his face. George now wishes to bring an action to recover damages for his injuries.
Assume for the purposes of the questions that Ian is an employee of H & Co Ltd.
Required:
1 Explain whether George could bring a successful action against H & Co Ltd for damages for his injuries. (10 marks)
2 If George brings an action for damages against H & Co Ltd, explain if any common law defence is available or not available to H & Co Ltd. (10 marks)
3 If George brings an action for damages against H & Co Ltd, explain what partial defence may be available to H & Co Ltd.
(10 marks)
Explanation / Answer
1 Explain whether George could bring a successful action against H & Co Ltd for damages for his injuries. (10 marks)
In this case study there are several points clearly written and pointed out on the basis of which we can say that George cannot bring a successful action against H & Co Ltd. One of the most important reasons is that he is not an employee of the organization and secondly he was going along with Ian during his working hours which is illegal. There is a very slight chance of some action against the H & Co Ltd since the damage to George was by the company’s vehicle but again as per the contract between H & Co Ltd and Ian maintenance of the vehicle was responsibility of Ian. And top of all both of them were driving in the wrong direction which in itself is a crime. So based on all these points we can clearly say that George cannot bring a successful action against H & Co Ltd.
2 If George brings an action for damages against H & Co Ltd, explain if any common law defence is available or not available to H & Co Ltd. (10 marks)
As we have seen in the answer to the question number 1 that George and Ian were at fault and were even illegally driving on the wrong side of the road. Only remote chance for George to take some action against H & Co Ltd was of no use due to following reasons
1-There were driving on the wrong side
2-George was not an employee of H & Co Ltd
3-He was accompanying Ian during his working hours which in itself can be termed as negligence of duty by Ian and George as a co-culprit to this.
4-He was also not wearing seat belt while on vehicle which again is an offense.
Based on all these reasons and issues George cannot claim anything against his personal damages from H & Co Ltd.
3 If George brings an action for damages against H & Co Ltd, explain what partial defence may be available to H & Co Ltd.
This question seems to be more or less same as question number 2 and here also same thing applies that George cannot claim anything for his personal damages from the company H & Co Ltd. Again listing out the points and reasons which go against George due to which he cannot claim damages against H & Co Ltd
1-There were driving on the wrong side
2-George was not an employee of H & Co Ltd
3-He was accompanying Ian during his working hours which in itself can be termed as negligence of duty by Ian and George as a co-culprit to this.
4-He was also not wearing seat belt while on vehicle which again is an offense.
Related Questions
drjack9650@gmail.com
Navigate
Integrity-first tutoring: explanations and feedback only — we do not complete graded work. Learn more.