Business Law Presentation: a breach of duty
About a breach of duty of care:
The exit from Opal Ltd's loading dock is via a poorly lit alley between two buildings. The alley crosses a footpath before emerging into the main street. Drivers and passing pedestrians have difficulty seeing one another and Opal Ltd has therefore put a large sign near the end of the alley reading, 'Drivers must sound horn'. It also considered placing convex mirrors on the side walls of the buildings at the end of the alley so that drivers could check for approaching pedestrians but discarded the idea because it would have been very expensive and because 'no-one else does it anyway'. Phil, who had just made a delivery to Opal Ltd, drove out of the alley sounding his horn as he did so. Unfortunately, Quinlin, a profoundly deaf pedestrian then approaching the entrance to the alley, did not hear the horn and, as Phil emerged from the alley, his truck struck Quinlin and injured him badly.
*Are either Opal Ltd or Phil liable to Quinlin in negligence? * Why?
- Kenzzz_chLv 71 decade agoFavorite Answer
I have to disagree with Gary. I have never come across a case which suggests that the test for negligence is one-fold and that the test is the defendant did not actprobably even it is clear this situation will happen sooner or later. That is NOT the position of the law.
To succeed in an action of negligence, one needs to prove 4 elements:
1. duty of care
donoghue v stevenson
Ratio: One owes another a duty of care if the injury to the other person (neighbour) is reasonably foreseeable.
2. breach of duty
Ratio:when the defendant's act fall below the standard of the reasonable person, he is in breach of his duty
3. causation (in facts)
Ratio: causation is proved if the plaintiff would not have suffered injuries but for the defendant's breach of duty.
4. remoteness of damage
Ratio: the harm caused by the defendant is not too remote if it is reasonably foreseeable.
I believe that both Opal and Phil owe a duty of care to Quinlin. There is no doubt that a driver owes a duty of care to pedestrians and a reasonable person can also easily foresee injuries to others if the condition of the alley is not improved.
However, there is nothing to suggest that Phil breached his duty of care owed to Quinlin. Phil sounded his horn and could not see Quinlin, so Phil obviously did not fall below the reasonable person standard. On the other hand, I believe that Opal has breached the duty of care it owed to Quinlin because a reasonable occupier of the dock will probably place convex mirrors on the side wall. Nobody does it does not mean a reasonable person will not do it.
Causation is also probably satisfied because but for Opal's breach of duty, Quinlin would not have been injured.
There is also nothing to suggest that the injuries suffered by Quinlin are remote.
Probably no defence is available to Opal.
Therefore, Phil is not liable but Opal is probably liable to Quinlin in negligence.
- GaryLv 71 decade ago
No in this case.
In order to prove negligence, a plaintiff must be able to prove it to the court that the defendant did not act probably even it is clear this situation will happen sooner or later.
However, in this case, both sides did already what they can to prevent the accident. No one can really think of someone who is deaf walking in the alley. Unless there is more profound proof of negligence, you don't have a case at all.