Memorandum of Law Case Study Example | Topics and Well Written Essays - 2000 words

Memorandum of Law - Case Study Example Likewise if he goes on to the wrong side of the road. It is no answer for him to say: 'I was a learner driver under instruction. I was doing my best and could not help it.' The civil law permits no such excuse. It requires of him the same standard of care as of any other driver. 'It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.' The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity."3 Applying the same principle to the instant case, the biker must, whether or not she is driving a car or a bicycle or motorcycle, whether in a road, highway, street, or bicycle path in a local park, as a driver drive in as good a manner as a driver of skill, experience and care, sound in win d and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity. ... er had been exchanging text messages on his mobile phone, and that it had been the driver's inattention through using his mobile phone that caused the accident. Likewise, in the case of R. v Payne (John),5 it was ruled that the driver was rightfully convicted because the driver allowed himself to be distracted whilst driving.6 In the case of the biker, he was not watching where he was going and has in fact been reprimanded by Cost Price Courier's on several occasions for failure to adhere to traffic regulations. Hence, the biker was negligent in his driving and in breach of his duty of care as a driver. Causation. To be able to claim against the for personal injury and/or damage to property under the law of tort and against the doctor for professional negligence, it is imperative for the boy and his parents to establish causation. There is causation when both factual causation and legal causation are present. Factual causation refers to the nexus between the defendant's action and the claimant's damage (the 'but for' test) while legal causation refers to the break or 'novus actus' in the chain of causation. Applying the 'but for' test applied by Lord Denning in Cork v Kirby MacLean [1952], and illustrated in Barnett v Chelsea and Kensington Hospital Management Committee [1969], the boy would not have suffered personal injury (head injuries and brain damage) and damage to property (probably his skateboard) but for failure of the biker to drive properly and carefully considering that he was not looking where he was going and that he has been repeatedly reprimanded by his employer on s everal occasions for failure to adhere to traffic regulations. The boy and the parents could argue that there is no evidence of a 'novus actus' breaking the chain of causation. The biker is