QUESTION
Part 1 – Value: 50% of assignment mark (10% of final mark).
Max decided to celebrate his birthday by having a few alcoholic drinks. After a few hours spent in the local pub, Max decided he was alright to drive home, however he was well over the legal drink driving limit.
Felix was driving home from his friend’s house that afternoon when he received a phone call on his mobile phone that was sitting on the seat beside him. While Felix was reaching to answer the phone he did not notice a Stop sign coming up ahead and he drove straight through it. At the same time Max was driving along the perpendicular road at 15 kilometres an hour over the speed limit and Felix crashed straight into the side of Max’s car.
Max’s car was extensively damaged and he suffered severe leg injuries in the accident. He was taken to hospital, had to have two operations and was in hospital for eight weeks. As a result of the injuries, Max was unable to work and he incurred significant medical and physiotherapy bills in recovering from the injuries. He also incurred significant expenses in having his damaged car repaired. Advise Max of his legal rights against Felix using the law of torts. Include in your answer the following:
– A discussion of any cause of action and/or remedies Max might have against Felix and on what basis, and
– What defences are available to Felix, if any.
Part 2 – Value: 50% of assignment mark (10% of final mark).
After Max recovered he decided to go and consult his lawyer, Derryn, to see whether he could recover any damages from Felix for his injuries. Derryn, however, had been to the dentist that morning and had received a large dose of heavy pain killers and sedatives for the dental procedure which resulted in Derryn not being able to think straight or advise his clients properly. However, it was not possible for Max or anyone else to detect this and Derryn actively concealed it from everyone he spoke with that day.
Derryn listened to Max’s explanation of the facts of the case but incorrectly assessed the case as not giving rise to any likely cause of action for Max in the law of negligence. Derryn told Max that he did not think Max had any chance of success by suing Felix in negligence. Based on this advice, Max therefore decided not to pursue any action against Felix. This meant that Max may have forfeited a large amount of money in compensation from any potentially successful court judgment against Felix. (Assume that any cause of action is now statute barred due to time limits).
Advise Max in relation to his legal rights as against Derryn, if any, using the law of negligence.
SOLUTION
Part 1:
We see in the instant case Max has incurred both personal injuries as well as financial losses. Law of Torts has specific remedies regarding these types of cases as the law is aimed to curb negligence practices and help the citizens to claim their rights. Law of torts is aimed to give remedies for wrongs which are in civil nature. Civil wrongs are a result of breach of duty imposed upon an individual by law and that may be from the legislation or from the common law [ Sam Blay, Nature of Tort Liability].
Now we have to analyze in this case what duty has been breached and what would be liability on the parties which would act as Max’s claim and also act as Felix’s defense. Law of torts casts a liability upon the wrong doer. The wrong doer or the defendant is required to pay damages to the victim or plaintiff only when it is proved that due to the particular act of the defendant the plaintiff has suffered losses or injury.
The wrong doer thus has the liability towards the victim. Further liability may be classified as:
(i) Fault Liability:
It concerned with failure to live up to the standards which may be caused by an act or omission which may be due to intentional behavior of the wrong doer or may be due to having been negligent on his part.
In tort law liability only arises when the act or omission has been caused intentionally or due to negligent act otherwise any other act is pure accident and is not actionable.
Thus we see in the instant case it is a negligent act of Felix i.e. trying to receive a call on a busy road that has led to the accident in which Max although was drunk was moving in the right lane and direction and has observed full diligence. Thus Max can sue Felix for the fault liability and has sufficient reasons to support his case.
Whereas Felix can take the defense that the fault was on Max as he was drunk above the allowed level and even has exceeded the speed limit it was due to his negligent act that has initiated the accident. Thus under this liability cause both parties have valid questions to be decided.
(ii) Strict Liability:
In some amount of torts no fault is required to raise a liability those are described as strict liability. Only thing that is to be proven is the wrong done and it has caused injury to the victim and no intention or negligence has to be proven. Thus under strict liability this case cannot be decided as there are elements of intention and negligence are present in the case.
The element of intent has to been the basis of fault liability. Here we see that there is definitely a presence of constructive intent on the part of Felix when he tried to receive a call knowing that this act can cause accident or inconvenience for the many travelling on the busy road thus making Felix liable. The element of negligence is not denied in this case as the act of Felix has caused the accident and he has failed to take reasonable care discharging his duty.
Therefore taking into consideration all these factors Felix can also plead contributory negligence on Max’s part as he was also drunk above the allowed level and even broke the speed limit rule of the road. .
After analyzing the aspects and facts of the case these questions may arise for the parties to determine in deciding the case.
Part 2:
In the instant set of facts we see that the case of professional negligence has arisen on Derryn as it was the intentional conduct by Derryn that has led to the forfeiture of a legal right which he would have exercised against Max to be validly decided by the courts.
As we see that it is prescribed for the professionals to follow professional ethics and the instant case could be the example of breach of professional ethics. As there has been many instances where the courts have considered the pleas of the victims in judging professional negligence and helped the tort law to develop in deciding the liability for these types of conducts.
The rule of professional negligence had its roots from the famous case of Bolam v Friern Hospital Management Committee[[1957] 1 WLR 582]. Where it was held that the doctor is not guilty of professional negligence if he has followed a practice which s followed in the profession. Thus after the decision these types of cases were decided by the rule laid down in this case famously called the Bolam rule. Although it was a judgment specifically related to medical practitioners but it was often stretched by courts exercising their discretion to decide cases of professional negligence.
However the perception was changed by the courts in Rogers v Whitaker[ (1992) 175 CLR 479] where the courts took a different approach so the Bolam rule is not considered to be an universally accepted rule in Australia and now the discretion of judges act as the main key in deciding the duty of care in professional negligence cases. Under the current law courts have the power to accept the opinion of an expert body unless they have strong reason to reject it [Chapter 3, Professional Negligence].
Here in the instant case Derryn has a duty to provide the legal opinion to Max taking all the factors into account. He has a duty to exercise reasonable care towards the client which has been breached in this case and courts have also taken strict views upon these cases. Lawyers and barristers can also be sued in the court of law [Professional Negligence, Negligent Solicitor or Barrister]. Thus Max can take the case in the court of law alleging professional negligence. Moreover Max also has an option to complain of the same in the relevant bar in which Derryn practices claiming irresponsible and negligent behavior.
As we see Max would have a very strong case as it was well within the knowledge of Derryn that the advice that he is giving is not a proper advice as he is not in his complete senses and mind is working properly. It was negligent act of professional misconduct that is being done which has caused the loss to Max.
As we have analyzed various aspects of the tort law it is a fault liability which rests upon Derryn who has acted in complete negligence while discharging a professional duty. As it was the duty of care that was casted upon him to give proper advice to Max. He has deliberately concealed a fact from the client which has breached the solicitor client relation in this case. Thus Max would have a very strong case against Derryn.
References:
1. Sam Blay, Nature of Tort Liability, viewed on April 5th 2012, <http://www.findlaw.com.au/articles/149/the-nature-of-tort-liability.aspx>
2. Chapter 3, Professional Negligence, viewed on April 5th 2012, <http://revofneg.treasury.gov.au/content/Report/PDF/09.pdf>
3. Professional Negligence, Negligent Solicitor or Barrister, viewed on April 5th 2012, <http://www.solicitornegligence.info/>
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