What is  Negligence?

Table of Contents
3 1.0 Introduction
3 1.1 Facts
3 1.2 Right of parties
4 2.0 Duty of care
5 Reference

 

1.0  Introduction
Legally speaking, every person has got a right to be compensated for injuries suffered if they were occasioned by someone else’s actions. Compensation therefore comes from the person at fault or his/her insurance company.
Jason’s case calls for careful consideration. The correct facts have to be established to prove liability and to whose side the liability of the accident lies.
1.1 Facts
It is a fact that Jason was driving his car which had no mechanical problems and had proper headlights on the night of the accident. Furthermore, he was not intoxicated and neither was he driving recklessly. Therefore, he exercised reasonable care while driving the vehicle.
During the night of the accident, visibility was not excellent especially around the bend as it was a clear but dark night.
The electric pole was placed just at the curve and there were no visible sign to indicate its presence, driver anticipation is hence hampered.
It is also a fact that this is not the first accident because in a span of 3 months three cars had been involved in a similar accident too. However, P G & E never bothered to indicate the presence of the electric pole nor change its position.
1.2 Rights of parties
Legally, Jason is absolved of any negligence on his part as the accident was not his own doing. Negligence lies on the part of P G & E which failed to rectify the situation when it first happened.
Therefore Lucky has got to sue P G & E and not Jason for negligence in the erection of the electric pole at a dangerous position. Elizabeth has no claim against Jason and Lucky as neither of them were negligent or had a part to play in contributory negligence.
2.0 Duty of Care
When a person is injured as a result of another person’s lack of duty of care, then under common law the aggrieved person has got the right to sue the other person and claim for damages (Donoghue v Stevenson). Relating this to our current case, it can be safely construed that Farmer had a duty of care to the community to ensure that his bull was properly fastened and therefore avoid being a danger in society. However, by being negligent and failing to check on the condition of the wood of the pen, Farmer acted negligently. His negligence resulted to Matt being chased by the bull and as result he trampled Neighbour’s prized roses. Neighbour however has got no legal claim against Matt. Reason being Matt never trampled on his roses on his own volition. Therefore, Farmer had to pay for the rose’s worth.
Drew however cannot claim that Farmer’s negligence led to his action of killing Matt. Legally, a person has to defend themselves with the same amount of force that his opponent is using to attack him. In this case, Matt had not forced Drew out of the car, therefore, drew’s action of using more force (use of the gun) to subdue Matt is not legal and is considered as murder. He had the option of reporting the matter to the police since he knew Matt and where he lived, but instead he chooses to shot and kill him. Additionally he could have aimed at a different part of the car instead of aiming for Matt. His intention was therefore to kill Matt and not subdue Matt. Therefore the estate of Matt can sue Drew for the murder of drew. In criminal cases, Mens rea and Actus rea are equally important. The action of ‘stealing’ the car did happen, but Matt never intended to steal the car, in fact he was using it to save his life. However, Drew both has the Mens rea and the Actus rea.

Reference
Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562; House of Lords

 

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