Tutorial
Business Law
Law of Tort
Question 1

The driver of a car driving at a fast speed hits
a pedestrian who had just stepped down from
the footpath to cross the road. Is the driver
liable
(10 marks)
Answer

Issue


Does the pedestrian have a course of action against
driver?
Law


Negligence is defined as ‘the breach of a legal duty
to take care which results in damages, undesired by
the defendant, to the plaintiff’
The ingredients of negligence are: 


A legal duty on the part of A towards B to exercise care
in such conduct of A as falls within the scope of the duty
Breach of that duty
Consequential damage to B
Answer

Law

Defences


Volenti Non Fit Injuria (Voluntary Assumption of Risk)
Contributory Negligence

S.12 of the Civil Law Act 1956
Answer

Application

Does the driver owe pedestrian a duty of care?




The test for the existence of a duty owed to the plaintiff is the
‘neighbour’ principle stated by Lord Atkin in Donoghue v
Stevenson, i.e. the foresight of the reasonable man
One therefore asks the question whether the injury to the
plaintiff was reasonably foreseeable consequence of the
defendant’s acts or omissions
Consider the facts and circumstances of that case
It is not required that the plaintiff must be identifiable by the
defendant
Answer
•
Application

Does the driver owe pedestrian a duty of
care?
•
•
OTF – the injury to the pedestrian was reasonably
foreseeable consequence of the driver’s acts or omissions
because she consumed their product
The driver owe a DOC to everyone uses the road
Answer
•
Application
–
Did the driver breach this duty of care?
•
•
•
•
Blyth v Birmingham Waterworks Co – reasonable man test
A reasonable man has been described as ‘the man on the
omnibus’.
In other words, a ‘reasonable man’ means an ordinary man
who is not expected to have any particular skill such as that
possessed by a surgeon, a lawyer or a plumber unless he is
actually one
The standard of what is ‘reasonable’ is an objective one
Answer
•
Application
–
Did the drive-in fast food restaurant breach
this duty of care?
–
OTF – reasonable driver – drive carefully
Answer
•
Application
–
Was the pedestrian’s damages remote?
–
–
–
–
Pedestrian’s damage must have been caused by the driver’s
breach of duty and must not be too remote a consequence
of it
This means that one has to ask whether the breach of duty
was the primary cause of the damage
In The Wagon Mound [1961] A.C. 388, the Privy Council
that the foresight of the reasonable man alone can
determine responsibility
OTF – yes. If a driver drives negligently, it is foreseeable that
he may injure himself
Answer
•
Application
•
•
Thus, there is negligence and the driver may be liable
Are there any defences available to the driver?
• Volenti
• OTF - no
• Contributory negligence
• OTF – yes. The pedestrian contributed to his
own injury by stepping down the footpath
• Thus, liability will be divided between the
pedestrian and the driver (s12 Civil Law Act
1956)
Answer
•
Conclusion
•
•
•
•
The pedestrian has a course of action against the
driver
They are liable for negligence
However, they have a defence of contributory
negligence
Thus, the liability will be divided between the
pedestrian and the driver
Question 2

Discuss the remedies that may be claimed in
the tort of negligence.
(5 marks)
Answer

5 marks will be awarded for the identification
and brief discussion of the correct remedies.
The remedies available in tort of negligence
are: 
Damages
Question 3

Under what circumstances can the defence of
‘contributory negligence’ be used in order to reduce the
liability for tort of negligence?
(5 marks)
Answer

5 marks will be awarded for the identification
and elaboration of the circumstances. The
defence of contributory negligence can be
successfully invoked if D can prove that P
was also at fault for the negligence.
Question 4

Explain the THREE (3) elements that must be
satisfied in order to bring a claim under tort of
negligence.
(15 marks)
Answer



Duty of car
Breach of that duty
Damages
Q&A