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BUS107 Commercial Law

Published : 04-Sep,2021  |  Views : 10


Two friends, Rebecca and Michelle, attended a performance called ‘An Evening with Oprah’ with Oprah Winfrey. A ticketing issue at the box office caused the performance to be delayed by one hour so Rebecca and Michelle passed the time drinking wine together at one of the venues many bars.After the performance, Rebecca realised that Michelle was too drunk to drive but accepted a ride home anyway. When Michelle started driving dangerously, Rebecca twice asked to get out of the car. Michelle continued driving and crashed the car. Rebecca sustained serious injuries including a broken leg. She now wishes to sue Michelle in negligence for her losses. 
what the issues in this problem based question and how to apply IRAC method. There is Five Issues in this assignment so please Do each issue with RULE.


Issue: After going through the facts that have been provided in this question, the issue is that Michelle and Rebecca have gone to see a act of Oprah Winfrey. As there was matter related with ticketing, there was a delay in the performance. During this time, both of them have some wine at the bar while they were waiting for the start of the performance. After the show had ended, Rebecca knew very well that Michelle was quite under the influence. However, she made a decision to ride with Michelle in her car. But very soon, Rebecca realized that Michelle had been driving unsafely. As a result, she wanted to alight from the car and therefore asked Michelle to stop the car. However, Michelle kept on driving and very soon the car met with an accident. As a result of this accident, Rebecca had to face serious injuries as well as a broken leg. Under these circumstances, Rebecca seeks advised if can take legal action against Michelle and also what will be the effect of the defense of contributory negligence, if pleaded by Michelle.

The other issues are:-

Is there a breach of duty of care by Michelle;

The injuries suffered by Rebecca were caused as a result of Michelle's actions;

Can Michelle rely on the defense of contributory negligence?

Can Michelle rely on the defense of voluntary assumption of risk?

Rule: Under the law of tort, contributory negligence is the behavior of the claimant due to which some contribution has been made in the injuries suffered by the claimant. Due to the reason that the claimant also failed to fulfill the standard of care that would have been fulfilled by any other reasonable individual in such circumstances in order to avoid the injury or the loss that had been caused to the claimant. Therefore, if such circumstances are present, the party that has been accused of negligence can rely on the defense of contributory negligence by the other party (Palmer and Davies, 1980).

But in such cases it is worth mentioning that the respondent can rely on the defense of contributory negligence only if it can be established by the defendant that the claimant was also at fault in some way (Legg, 1999). Similarly, it also needs to be established that such fault had contributed in part, in causing the injury to the claimant. Another requirement of the law for this purpose is that it should be established that in a particular case, it will be just and equitable to decrease the damages due to the reason that the claimant was also at fault (Seddon, 1999). Hence, in such cases there is a responsibility imposed on the defendant to establish that some contribution has been made by the claimant in negligence (Lockhart, 1989). A relevant example in this regard is that of Dann v Hamilton (1939).

In this case, as it had been accepted by the claimant that was offered by the defendant even if the claimant was well aware that the defendant was heavily intoxicated at the time. While deciding the case, it was mentioned by the court that defense of volenti non fit injuria is not available in such cases. However, the case would have been different if there were some extreme circumstances present. For example, if the drunkenness of the driver of the motor vehicle would have been obvious and therefore it can be concluded that an evident and obvious risk was present, which had been knowingly accepted by the other party.

Another case that is relevant on the basis of the facts of this case is that of Owens v Brimmell (1977). Both the driver of the car and the passenger had consumed some wine. While returning, the driver lost control of the vehicle and the car collided with a lamp post. It was held by the Court of Appeal in this case that there was a contribution in negligence by the passenger also in this case. The reason given by the court that it was decided by the passenger to ride with the defendant even after knowing very well that the driver had taken by and large quantity and therefore it will be very difficult for the defendant to drive safely.

Therefore, the court concluded that in this case, the passenger was also liable for contributed in negligence. The reason was that the claimant was well aware that while returning, the companion will be going to drive the car however. The passenger continued to accompany the defendant in drinking excessive wine. As a result in such cases, even if it has been said by the court that the defense of volenti non fit injuria is not available, still the damages can be reduced on account of the fact that the claimant has also contributed in negligence (Mason, 1987).

Another important case is that of Astley v Austrust Limited (1999) , where the court had to consider if the damages can be reduced as a result of the contribution of negligence by the claimant.

Application: When the above-mentioned legal position is applied to the facts of this case, it can be said that the beta and Michelle have taken wine before the show. However, when they were coming back from the show, Rebecca was well aware of the fact that Michelle had consumed wine excessively and it will not be safe for her to drive the car. Still, Rebecca decided to ride with the car driven by Michelle. Moreover, when both of them were consuming wine, Rebecca was well aware that while returning, the car will be driven by Michelle.

After writing for some time in the car, Rebecca became sure that Michelle cannot drive safely. As a result, she asked Michelle to let her out of the car. Still, Michelle continued driving and after some time the car crashed. As a result, Rebecca injured her leg and got other serious injuries. On the basis of the above-mentioned legal position, it can be said that Rebecca got injuries due to the negligence of Michelle as she was driving car after consuming a lot of wine. Michelle also had a duty of care towards Rebecca and this duty has been breached. But it is worth mentioning that while accepting to ride in the car driven by Michelle, Rebecca knew very well that Michelle was highly intoxicated.


As a result, it can be concluded in this case, Rebecca has also made a contribution in negligence for the injuries suffered by her. Therefore the amount of damages can be reduced.

It can also be concluded that:-

Michelle had a duty of care towards Rebecca.

There was a breach of duty of care by Michelle.

The injuries suffered by Rebecca were caused due to the actions of Michelle and were not too remote.

Michelle can rely on the defense of contributed negligence.

However, Michelle cannot use the defense of voluntary assumption of risk.


Legg, M. (1999) 'The High Court's Decision on Contractual Liability and Contributory Negligence in Asrtey vAustrustLtd 17 Aust Bar Rev 262

Lockhart C. (1989) 'Contributory Negligence as a Defence to a Claim for Breach of Contract: Arthur Young & Co I, WA Chip &Pulp Co PtyLtd' 19 UWAL Rev 411

Mason, K. (1987) 'Contract and Tort: Looking Across the Boundary from the Side of Contract' 61 ALJ 228

Palmer, N.E. and Davies P.J. (1980) 'Contributory Negligence and Breach of Contract: English and Australasian Attitudes Compared' 29 Int& Comp LQ 415

Seddon, N. (1999) 'Contract Remcdics where both Parties are at Fault' Remedies Teachers Conference (Melbourne) 7

Case Law

Astley v Austrust Limited, 1999, 197 CLR 1

Dann v Hamilton [1939] 1 KB 509

Owens v Brimmell[1977] 1 QB 859

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