Hey there! Sign in to join this conversationNew here? Join for free

Very easy question (promise!) ~ Tort Watch

Announcements
    • Thread Starter
    Offline

    0
    ReputationRep:
    Hey there. I got my coursework questions a little while ago, and I was attempting the Tort one. Here is part of the question (that I'd like help on):

    Jim was driving his car along Poppleton High Street at 40 mph (it is a 30 mph zone), when his mobile telephone rang. As he was reaching across to retrieve the telephone, he lost control of his car, which mounted the pavement and caused serious injury to Carol, a pedestrian
    My question is simple. As far as I am aware, drivers already owe a duty of care (to the general public?) to drive in a careful etc way.
    So, where there is an already established duty of care... Do I literally just write "There's a duty of care here."? That sentence looks remarkably lonely in my answer. What is the best way of writing this?
    [or: You tell me there isn't an established duty of care so I must use Donoghue v. Stevenson and I look like an idiot and learn from my mistake]

    Bonus question:
    I don't actually know anything about driving; I'm not allowed to drive or accept lifts from people outside my family. I had the belief that speeding and/or using mobiles while driving was bad practice (and only illegal if you get caught... lol), but at the same time, EVERYONE seems to do it.
    I expect a facepalm from all the readers of this question, but I presume it is not correct to say "Yeah, well... most people use their mobiles or speed when driving. And hey, he wasn't even speeding that much. So let the poor chap off as he's met the general standard of care."
    Please tell me I'm being silly. I will worry about this until someone slaps me 'round the face and says "Don't be damn stupid, of course he hasn't met the standard of care". Will someone clarify for me?

    Thanks!!
    Offline

    2
    ReputationRep:
    (Original post by theimaginaryduck)
    Hey there. I got my coursework questions a little while ago, and I was attempting the Tort one. Here is part of the question (that I'd like help on):



    My question is simple. As far as I am aware, drivers already owe a duty of care (to the general public?) to drive in a careful etc way.
    So, where there is an already established duty of care... Do I literally just write "There's a duty of care here."? That sentence looks remarkably lonely in my answer. What is the best way of writing this?
    [or: You tell me there isn't an established duty of care so I must use Donoghue v. Stevenson and I look like an idiot and learn from my mistake]

    Bonus question:
    I don't actually know anything about driving; I'm not allowed to drive or accept lifts from people outside my family. I had the belief that speeding and/or using mobiles while driving was bad practice (and only illegal if you get caught... lol), but at the same time, EVERYONE seems to do it.
    I expect a facepalm from all the readers of this question, but I presume it is not correct to say "Yeah, well... most people use their mobiles or speed when driving. And hey, he wasn't even speeding that much. So let the poor chap off as he's met the general standard of care."
    Please tell me I'm being silly. I will worry about this until someone slaps me 'round the face and says "Don't be damn stupid, of course he hasn't met the standard of care". Will someone clarify for me?

    Thanks!!
    Yes, there is an established duty of care for drivers. You need to cite the case which states that. You need to take into account the other elements of negligence, too--what are the elements of negligence? What is the relevant duty here? What is the appropriate standard?

    If there isn't an established duty of care, you'd still be highly unlikely to use Donoghue and Stevenson to argue there was. You're more likely to proceed incrementally, by established duties, and by the test in Caparo. Donoghue and Stevenson is still good law, but it isn't the primary way of determining whether to create/find a new cause of action for negligence.

    Illegality has nothing to do with being caught. And no, a driver who is speaking on the phone probably *hasn't* met the standard of care. Indeed, they'd be guilty of an offence under the Road Traffic Act 1988 s3. (Though that's a criminal offence, not a tort.)
    Offline

    11
    ReputationRep:
    If it's obvious there is a duty of care, you actually don't need to cite all the elements (although if it's for coursework, it may be different). Why waste everyone's time on something obvious (I don't mean to sound rude - this is pretty much the wording i was given by my supervisor last year when we asked the exact same question ). You can just say "Drivers owe a duty of care to the general public to drive carefully. As such there is a duty of care here". Especially if you need the spare words for something else. If you *really* want, cite Donoghue v Stevenson for the neighbour principle to back up your case.

    Illegality, as jjarvis said, does not help your case. It is completely irrelevant if everyone breaks a particular law - it is still breaking the law and, objectively, the reasonable person does not break the law. (Speeding is against the law no matter if you're caught or not)
    • Thread Starter
    Offline

    0
    ReputationRep:
    Yeah, I know about Caparo, too, of course. I just mentioned DvS because it's the case everyone seems to cite as a main source (despite Caparo being more in-depth :confused:... oh well).

    Thanks for confirming all that ~ I have a habit of worrying about silly things I just don't want to mess up my coursework by saying something irrelevant or blindingly obvious or whatever
    Offline

    2
    ReputationRep:
    (Original post by gethsemane342)
    If it's obvious there is a duty of care, you actually don't need to cite all the elements (although if it's for coursework, it may be different). Why waste everyone's time on something obvious (I don't mean to sound rude - this is pretty much the wording i was given by my supervisor last year when we asked the exact same question ). You can just say "Drivers owe a duty of care to the general public to drive carefully. As such there is a duty of care here". Especially if you need the spare words for something else. If you *really* want, cite Donoghue v Stevenson for the neighbour principle to back up your case.
    Yeah, this is especially likely to be true in a traffic accident case. The breach is pretty clear from the circumstances, and the duty almost goes without saying.
 
 
 
  • See more of what you like on The Student Room

    You can personalise what you see on TSR. Tell us a little about yourself to get started.

  • Poll
    Will you be richer or poorer than your parents?
  • See more of what you like on The Student Room

    You can personalise what you see on TSR. Tell us a little about yourself to get started.

  • The Student Room, Get Revising and Marked by Teachers are trading names of The Student Room Group Ltd.

    Register Number: 04666380 (England and Wales), VAT No. 806 8067 22 Registered Office: International House, Queens Road, Brighton, BN1 3XE

    Quick reply
    Reputation gems: You get these gems as you gain rep from other members for making good contributions and giving helpful advice.