A Critical Discussion Based on a Tort Law Problem Question

(b)Ajith is an experienced driver with 25 years’ experience and accident free record. Last Friday early morning he was driving in Galle Road in 90 per mile speed and at Bambalapitiya junction he lost his control ran over the pedestrian who was killed spontaneously. The Government Medical Officer found that he was not under the liquor influence at the time of the accident. 1.3In the context of the scenario 1(b) critically discuss the type of action/s available against Ajith for accidentally killing a pedestrian at Bambalapitya pedestrian crossing. The facts of the incident can be listed as follow,

• Ajith is an experienced driver with 25 years’ experience and accident free record.
• Ajith lost his control and while driving and ran over a pedestrian who was killed spontaneously.
• The Government Medical Officer found that Ajith was not under the liquor influence at the time of the accident.

When considering the facts of the case, it is well depicted that, Ajith has committed a crime, whilst driving the vehicle. A pedestrian has died because of Ajith’s actions. In the scenario it is stated that, Ajith lost his control and while driving and ran over a pedestrian who was killed spontaneously. In tort law wrong can be civil or criminal. When a person commits a crime, the crime has different perceptions where, a one person commits a serious crime such as murder or when a person has done a negligent action which can amount to a serious crime also called a wrongdoing. Therefore, the nature and degree of wrong differs. One is very severe and criminal in nature and other is a lesser wrong and civil in nature. Hence wrongs which are severe and criminal in nature are legally known as criminal acts or offences that comes under the criminal law. And the wrongs which are lesser wrong are civil in nature are known as civil wrongs that come under the law of tort. When it comes to the scenario it is necessary to identify that the action of Ajith is amount to a murder or manslaughter. The scenario says that the, Ajith is an experienced driver with 25 years’ experience and accident free record. Therefore, a question arising whether the action of Ajith was intentional or not? It is very exceptional that a driver who has 25 years’ experience in driving commit a crime suddenly. Therefore, it is necessary to identify that, whether Ajith had a criminal intention to commit the crime. The law will only interfere to prosecute or punish a person only if the physical manifestation of criminal intention. The law will not punish any person for a merely having a criminal thought. Therefore, it is necessary to find the actus rea for a particular crime. In the case R v Pitawood (1902)[1], the court held that the case was criminal negligence, as the man was paid to keep the gate shut and protect the public and failed to do so and that failure has caused a breach of law. It is necessary to identify that the intention of Ajith, at the time the crime was committed. Because to prove a criminal intention of a person, it is not sufficient for the prosecutor to show a foresight on the part of accused, where the accused has done wholly to achieve his criminal objective. In the case of R v Mohan (1975)[2], the court defined intention as “ a decision to bring about in so far as it lies within the accused’s power, no matter whether the accused desired that consequence of his act or not. In the scenario it is mentioned that, the Government Medical Officer found that Ajith was not under the liquor influence at the time of the accident. This clearly depicts that the Ajith was not in the disposition to commit the crime intentionally. However it can be illustrated that the action was just a result of Ajith’s negligence driving. The negligence is a basis of liability in tortuous actions. Negligence can be defined as a conduct falling below the standard demanded for the protection of others against unreasonable risk of harm. In the case, the defendant, Ajiths’ guilty of negligence has to be ascertained in the context of the defendants duty to exercise care towards the plaintiff, pedestrian under particular circumstance. Therefore, two elements have to be proved under a negligence case. Which are the duty of care on the part of defendant and breach of the duty of care. In the case Bourchill v Young (1943)[3], the court held that the appellant did not come within the range of persons to whom the cyclist owed a duty of care as he could not reasonably have foreseen the mental distress the appellant suffered. As per the scenario, Ajith owes no duty of care to any person if he could not have foreseen that injury might be caused to such person by his negligence. Therefore, the foreseeable test is an important component in finding one’s duty of care. However, in the scenario Ajith’s negligent driving has caused a breach of duty. Although Ajith is a 25 years’ experience driver who is with a free accident record, Ajith had a duty of care towards the plaintiff pedestrian, because losing the control whilst driving a vehicle cannot be an excuse. The courts have adopted the objective principle of reasonable man test, to ascertain the standard of care required of a defendant. Under the objective test the defendant cannot escape liability by contending that he had done his best to prevent him from the act. The standard of care is not measured by the question of whether the defendant’s act fell below the standard but measured by the question of whether the defendant’s act fell below the standard of the reasonable man. In the case Hilder v Associated Portland Cement Manufacturing LTD (1961)[4], the court held that the circumstances the likelihood of harm was as great as to render the defendants liable in negligence. When considering the facts of the above scenario it is well depicted that if Ajith could have driven the vehicle safely, the pedestrian would have not been killed. Therefore, Ajith would have foreseen the harm at the time of the act. Hence it can be noted that the duty of care exists here since the harm is foreseeable. In the case Roe v Minister of Health (1954)[5], Lord Denning LJ held that, we must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure. When considering all the facts it is also well depicted that the strict liability also embedded in the above scenario. Strict liability denotes about crimes which require no proof of mens rea in relation to one or more aspects of the actus reus. The driver Ajith had a duty not to injure the pedestrian by knocking him down. No matter how much experience Ajith has, however he has failed to discharge his duty whenever he injures someone. In contrast, Ajith has failed to discharge his duty when he injured the pedestrian negligently, recklessly or intentionally. In the case Callow v Tillstone (1900)[6], a butcher was convicted of selling unfit meat despite the fact that he had had the meat certified as safe by a vet before the sale. His conviction was upheld as the offence was one of strict liability and it mattered not how diligent he had been to ensure the safety of the meat. When considering above all the facts and cases it is well depicted that Ajith Has breached his duty of care towards the pedestrian and it is also well denotes that the actions of Ajith’s were occurred because of his negligence. It says in the incident that, the Government Medical Officer found that Ajith was not under the liquor influence at the time of the accident and also since Ajith has a 25 years’ experience and accident free record, this action of him can be considered as a negligent action. As the defendant of this case to successfully defend against a negligence suit, Ajith should try to negate one of the elements of the plaintiff's cause of action. In other words, the defendant should introduce evidence that he did not owe a duty to the plaintiff; exercised reasonable care; did not cause the plaintiff's damages. Therefore, as per the contributory negligence, the defendant, Ajith can prove that plaintiff, pedestrian most likely would have avoided injuries had he or she not also been negligent. As per the comparative negligence, Ajith can prove that he would have acted differently had the pedestrian used the crosswalk, the driver's civil liability may be reduced due to the plaintiff's own negligence. As the defendant if Ajith cannot prove either of the above, the Ajiths actions will amount to a manslaughter, which is a culpable homicide less than a murder, because at the time of the incident Ajith did not have an intention to kill the pedestrian. However, if Ajith was found guilty, a punishment is provided to him. In a case where the act results in both civil as well as criminal wrong then both the civil and criminal remedies would concurrently be available to him.

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[1] R v Pittwood [1902] 37 (TLR ), also refereed in Dr. Bharry lecture notes, Criminal Law [2] R v Mohan [1975] 2 All 193 (ER), also refereed in Dr. Bharry lecture notes, Criminal Law [3] Bourhill v Young [1943] 92 (AC ), also refereed in Dr. Bharry lecture notes, Law of Tort [4] Hilder v Associated Portland Cement Manufacturing LTD [1961] 1 WLR 1434 (QB), also refereed in Dr. Bharry lecture notes, Law of Tort [5] Roe v Minister of Health [1954 ] 2 WLR 915 (),also refereed in Dr. Bharry lecture notes, Law of Tort [6] Callow v Tillstone [1900] 64 JP 823 322. (),also refereed in Dr. Bharry lecture notes, Law of Tort

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