I would seek further clarification on David’ and Esther’ injuries, in respect of, did they loose a limb? Broken Arm/Leg or Back? Or even glass cuts etc etc. One would also have to consider as to whether these injuries meant that they were unable to fulfil their daily requirements. To expand upon this, were they reliant on child care provision between them, were they responsible for the care of elderly family, were they unable to fulfil any financial arrangements, what was the likely result of any injuries that they may of incurred. Is it likely these injuries would be short termed or long termed, this would impact on their ability to be able to meet their financial requirements.
From what little I know, Frank was over the limit, he has been described a s being drunk whilst driving. However, I do not know what speed he was driving at, or whether he, or indeed David, took any avoiding action to avoid the collision.
My conclusion is that based on the limited evidence that has been presented that Frank is more liable than David in the circumstances that have been stated. However, I feel that the defence case would be based on the fact that Esther distracted David at a crucial time.
My view is that whilst Frank is so obviously at fault at this instance (res ipsa loquitur) he would have to prove that there were extenuating circumstances to negate his negligence in this case.
B) David may be in a better position to sue if the court were to see this as an obvious case of negligence as in cases where negligence is obvious, the ruling of res ipsa loquitur is applied. This means that instead of the plaintiff having to prove the defendant is guilty, the defendant has to prove that he/she is not guilty. When res ipsa loquitur is applied, in the majority of cases, the plaintiff will win, as the court unmistakably feels that negligence is obvious.
C)
I believe that Frank’s Barrister has a case in respect of both David and Esther. However to balance this argument I would reinforce the fact that Frank by driving on the wrong side of the road and being described as “very drunk” negates this to a great respect. Clearly, if Frank is drunk and therefore not being in full control of his motor vehicle he is responsible for any collision that may occur. David on the other hand, was momentarily distracted by Esther’s attentions and has to a certain extent, also been so distracted. It is a question of, in my opinion, how much any person can claim that David has been distracted to such an extent as to apportion any blame.
In my view, given the limited that I have to hand I would have to say that Frank who has consumed alcohol to such an extent that he is drunk, who is driving on the wrong side of the road is clearly at fault in the circumstances that have been outlined.
Esther is also at fault for distracting the attention of her boyfriend David by grabbing his arm for a silly reason.
I do not believe that David can be blamed, as the circumstances that have been outlined could have been foreseeable on his part.
It is my view that in the circumstances, that David should be given full compensation as often when driving a car there are numerous times when ones attention is distracted, i.e. low flying aircraft, low flying birds, sound of the car horns etc, etc.
What needs to be argued is whether or not David could have avoided collision with Franks car had Esther not grabbed his arm. I have very limited information as to whether this action by her actually changed any possible outcome. My gut reaction is that the Barrister would use the fact that she distracted David to reduce her any possible compensation for her in the circumstances as described.
D) If Gordon, Esther’s father visits hospital shortly after the accident and suffers from nervous shock, he may be eligible to sue Frank. If shortly, means with-in the same day, he will definitely be able to sue Frank. However, if shortly means after the day of the accident, the court would of probably ruled that he would have had time to calm himself, and expect that his daughter’s state would be bad before seeing her, and he would have been unable to sue Frank.
