Negligence Case. The victims in this problem may have a claim in tort of negligence, where a duty of care was established by Lord Atkin based on the neighbour principle in Donoghue v Stevenson[1].

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LW2603A: Compulsory assignment problem

The victims in this problem may have a claim in tort of negligence, where a duty of care was established by Lord Atkin based on the “neighbour principle” in Donoghue v Stevenson.

There are two victims that the question wanted to focus on; they are Lin and Rosita. To bring a claim under tort of negligence, they will have to prove four elements on preponderance of evidence and on balance of probabilities:

  1. The party who made them suffer owes a duty of care to him/her.
  2. The party breached such duty
  3. The party caused him/her harm, which he/she complained of and;
  4. S/he must show that the damage suffered is not too remote from the party’s negligence.

In this essay, I will examine whether these victims will have a successful claim/s towards the other party based on the elements listed.

Lin

The accident started from Martin knocked Lin off his bike without paying proper attention on his way back to work, which broke Lin’s legs and arms. In order to claim the damage, Lin has to impose a duty under negligence, we shall follow the three-fold test laid down by the House of Lords in Caparo Industries plc v Dickman.

        “(i) There must be reasonable foreseeability, (ii) a close and direct relationship of 'proximity' between the parties and (iii) it must be fair, just and reasonable to impose liability.”

It is reasonably foreseeable that if Martin does not pay proper attention to the road, someone will injure. Secondly, Lin was directly affected by Martin’s improper conduct caused him broken arms and legs during the accident. Finally, it is fair, just and reasonable to impose liability to Martin. In addition, this policy will encourage Martin and other drivers to be more careful when driving. Martin breached his duty by failing to take reasonable care to avoid acts and omissions which he can reasonably foresee to injure his neighbour, Lin, who is so closely and directly affected by his act. The “but-for” test is passed for factual causation. Since there is no alternative cause of the broken arms and legs, Martin's negligent is the effective cause of the damage. It is likely that Lin would have a successful claim against Martin for his broken arms and legs. He may then sue Ming Flooring Company (Ming), who agreed to be responsible for faults committed by Martin.

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Ming may argue that Martin was not at work at that moment, and therefore it should not be liable. However, the wrongful act was committed during the time he went out to buy tiles, which is considered to be part of his work. Therefore, it is very likely that Ming would be responsible based on vicarious liability.

Contrarily, claim for the broken neck should be distinct from the claim above because it consists of conducts of the ambulance driver, which is a Novus Actus Interveniens. It is reasonable and foreseeable that when he is sending the injured to ...

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