Tort Assessed Coursework
Submission Date: 24/02/2012
Word Count: 1500
Tutor: Lynne Shone
To bring a claim for negligence in tort a claimant must prove that a.) the defendant owed them a duty of care, b.) the defendant did not meet the standard of care required, c.) the breach of duty by the defendant caused the harm suffered by the claimant and d.) the loss was not too remote. If one of these elements fails then there can be no claim.
Andrea v Bernice
A road user owes other road users a duty of care; other road users include pedestrians, motorists and cyclists.
A duty is breached when the required standard is not met; in this case the standard is that of a competent driver. Bernice would not be able to use the case of Quinn v Scott   which held that speeding is not necessarily negligent; however, this judgement was made before the introduction of speed limits and so Bernice breached the standard by travelling above the speed limit thereby hindering her ability to stop before hitting Andrea.
To establish causation we must look at the facts more closely. To determine whether the defendant caused the harm the “but for” test must be applied. But for Bernice’s negligent driving would Andrea have suffered two broken legs? The answer is no, however, Bernice will be able to use the defence of contributory negligence under s.1 (1) of the Law Reform (Contributory Negligence) Act 1945 which states that “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated...but the damages recoverable in respect thereof shall be reduced...” Andrea had failed to stop at a red light and failed to slow down in time to avoid collision with Bernice’s car therefore she contributed to the negligence.
In the case of Malasi v Attmed , a taxi driver was speeding and collided with a cyclist who had gone through a red light the judge held that both were negligent but that the majority of the negligence lay with the cyclist as he had gone through a red light, had not been wearing high visibility clothing and had failed to break whereas the driver had only been speeding. The claimant’s damages were reduced to 20%.