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Phil is driving his son Don to school. He is running late. He gets 5 minutes down the road and remembers that Don has swimming today and he has forgotten his swimming bag. He quickly goes back to get it but as a result is running even further behind schedule. To try and make up the time, he drives faster and goes 30 miles per hour over the speed limit.
Phil’s mobile phone rings and he picks it up. It is his wife Carol asking him where he is because the school has called her wondering why Don has not arrived at school. Phil fails to see Kirstie coming around the corner, driving to work, and he crashes into her.
Phil and Don suffer minor injuries but Kirstie is severely injured breaking her arms, shoulder and numerous other bones because she suffers from a rare condition that means her bones are weak and are susceptible to breaks. Kirstie was not wearing a seatbelt at the time of the crash.
Kirstie is treated in hospital for her injuries by Dr Giles, the doctor on duty at the nearest hospital. Dr Giles fails to notice on Kirstie’s medical records that she is allergic to morphine, which he gives to Kirstie to treat the pain. Kirstie has an allergic reaction to the morphine and as a result her recovery time is doubled. Whilst Kirstie makes a full recovery, she has been unable to work for twelve months due to her injuries. Kirstie is self-employed and wishes to recover her loss of earnings.
Advise the potential claimants. 1000 words maximum. For each potential claimant, discuss
(1) duty
(2) breach
(3) causation
(4) remoteness and
(5) defences available.
Kirstie:
(1) Duty – Kirstie can claim against Phil for negligence as he owed her a duty of care to take reasonable steps to ensure that his driving was not dangerous. This duty extended even to those who may have been affected by his actions, such as Kirstie in this case.
(2) Breach – Phil breached the duty of care he owed to Kirstie when he drove 30 mph over the speed limit and failed to pay attention, leading him to crash into her car. Additionally, Dr. Giles also breached his duty of care when he failed to check Kirstie’s medical records before administering morphine.
(4) Remoteness – As both parties were found guilty of breach of duty then it can be assumed that causation has been established so remoteness must now be considered but since there is no intervening act between the defendants’ breaches of duty and the injury suffered by Kirstie all losses are foreseeable unless some sort of legal defense applies (see below). However, it should be noted that if either party can prove their action did not contribute significantly or substantially then they may only be liable for a proportionate share of damages suffered by the claimant instead of full liability as per s 1E Law Reform Act 1945.
(5) Defenses Available – Both parties could argue contributory negligence on behalf of Kirstie as she was not wearing a seatbelt at the time which could have prevented or reduced some/all injuries sustained in the accident however this argument would need supporting evidence in order for it succeed. Similarly they could argue volante non-fit injuria whereby someone assumes risk by voluntarily entering into an activity with knowledge that there is a risk involved e.g., riding without a seatbelt knowing there is potential danger associated with doing so; however again evidence will need providing in order for this defense argument stand up successfully in court. Alternatively either defendant may try arguing ex turpi causa where one party seeks exemption from liability due partially/fully based on illegal/fraudulent behavior i.e., speeding; however success here depends greatly on whether any other defenses apply firstly or are more applicable than ex turpi causa itself e .g., contributory negligence etc.…