Advise the potential claimants
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.
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Sample Solution
Kirstie:
1. Duty: Phil owed Kirstie a duty of care to drive with caution and obey the speed limit.
2. Breach: Phil breached his duty of care when he drove over the speed limit and failed to yield at an intersection, resulting in a collision with Kirstie’s vehicle.
3. Causation: The breach of duty caused physical harm to Kirstie as well as additional financial losses due to her inability to work for twelve months while recovering from her injuries.
4. Remoteness: The damage suffered by Kirstie was not too remote since it was a foreseeable consequence of Phil’s reckless driving given the context and surrounding circumstances (i.e., speeding).
5. Defenses available: Phil may be able to argue contributory negligence on behalf of Kirstie if she is deemed partially responsible for the accident due to her failure to wear a seat belt or other factors such as being distracted while driving which may have contributed towards the collision.
Dr Giles:
1. Duty - Dr Giles owed Kristy a duty of care when providing medical treatment given his role as her doctor at that moment in time.
2. Breach - Dr Giles breached this duty by failing to notice on Kristy's medical records that she was allergic to morphine, which he gave her despite knowledge otherwise.
3. Causation - This breach caused an allergic reaction in Kristy, leading directly into an increase in recovery time compared had this been avoided through proper diagnosis.
4 & 5 : Remoteness/Defenses available – As far as remoteness goes, any damage suffered by Kristy would be considered foreseeable based on professional standards of care within medicine, making any defenses unlikely other than potential contributory negligence (if applicable).