Business/commercial law essay question and answers

Peter Ole Yang, while driving his car down Valley View road suddenly realized the brakes of the car had failed. Unable to stop the car he crashed into a motor vehicle driven James Kagio, damaging James Kagio’s motor vehicle and injuring him.

Advise Peter Ole Yang as to his civil liability. (6 marks)

ANSWER
• This problem is based on the tort of negligence. In this case Peter Ole Yang should contemplate the possibility of a claim against him in damages for negligence i.e. crashing into James Kagios Motor Vehicle and injuring him.
• This is an obvious case of negligence on the part of Ole Yang and cannot escape liability. Although there is no evidence why the brakes failed, such a thing does not ordinarily happen if a motor vehicle is property maintained.
• As a road user, Peter Ole Yang owed other road users including Kagio, a legal duty of care. He knew or reasonably ought to have known that using a defective motor would endanger other road users. Kagio can easily establish this element of negligence.
• It is also relatively easy for Kagio to prove loss or damage i.e. damage to his motor vehicle and injury.
• What may appear problematic, though not quite is establishing breach of duty, as he is unaware of the cause of the crash. But he may conveniently plead res ipsa loquitur. Since the facts speak for themselves and the court will presume negligence on the part of Peter.
• In such a case, the burden of proof shifts to Peter to explain the accident and can only escape liability proving that the accident occurred without any actor omission of negligence on his part which is this case is a tall order.
• In our estimation Peter will be held liable for negligence.



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