Alf and Bert are a pair of low-level criminals who specialize in home break-ins and car jackings.

One day
the pair had planned to steal a car by staging an accident. Alf pretended to collapse in the road as Eddie
was approaching, and made out that he was having a heart attack. Panicking, Eddie slammed on the
brakes, stopped and rushed out to help. As he did, Bert rushed out from behind a parked car and
bundled Eddie over. Alf and Bert then jumped into the car. As Alf had recently learned to drive, they had
agreed that he would be the getaway driver.

However, just as this was happening, P.C. Wedgewood drove around the corner on patrol. Seeing as
Eddie appeared OK, he gave chase after Alf and Bert. Realizing that the pair were being followed by the
police, Bert started yelling at Alf, ‘Drive faster and lose the copper you idiot!’ Alf sped up, but the pair
started to bicker as to the best way of escaping, and so neither was looking at where they were going.
As such, Alf did not see that he was coming up to a pedestrian crossing and sped through one without
stopping. Reg was crossing the road at that point and dived out of the way. However, he landed
awkwardly on his shoulder and elbow and due to an unknown condition suffered multiple fractures and
permanent loss of mobility. A person without the condition would just have suffered bruising.

Eventually, Alf took a corner at too much speed and lost control of the car. The car slid off the road and
crashed into a lamppost on the near-side pavement. The lamppost made impact with the front
passenger door causing severe injuries to Bert. Advise Alf as to his liability for the injuries suffered by
Reg and Bert. Identify the precedent which applies to the scenario and set out its scope. Apply it to both
Reg and Bert.

Duty of Care:

Identify the facts which support the duty owed to each being breached. Explain the standard expected
of Alf. Consider whether Reg’s evasive actions were an intervening act. Explain the egg-shell skull rule in
relation to Reg’s injuries. Apply the ‘but-for’

Advisory Introduction:

In advising Alf on his potential liability in negligence (as the driver) for the personal injuries suffered by
Reg and Bert, it is crucial to clearly identify the exact aspects under consideration.

1.

Precedent and Caparo:

As there is a precedent regarding the duty in this situation, there is no need to delve into discussions
about Caparo. Focus on the applicable precedent to establish the duty of care owed.

2.

Key Question of Experience:

While perhaps not the key question for liability in the scenario, it holds significance for Alf personally.
Given his lesser experience than the average motorist, it warrants detailed consideration to address
potential concerns.

3.

Explanation of Standard:

As the standard expected of Alf is detrimental to his chances of defeating the claim, advise him on why
this is the case. Demonstrate a nuanced understanding of the law to enhance the advisory quality.

4.

Scope of Duty and Breach:

Briefly remind the marker of your understanding of the scope of the duty owed. Then, draw on the facts
to illustrate how the duty was breached. Efficiently combine the discussions on duty and breach in
relation to both Reg and Bert.

5.

Causation and Foreseeability:

Examine whether Alf's actions satisfy causation requirements. Emphasize that foreseeable actions, such
as Reg jumping out of the way, should have been prevented by Alf's reasonable driving. Consider Wagon
Mound (No. 1) for foreseeability.

6.

Eggshell Skull Rule:

Advise Alf on the 'eggshell skull' rule, emphasizing that he must take the claimant as they are found.
Despite an unknown condition exacerbating the injury, liability remains as long as the injury was of a
foreseeable type.

7.

Contributory Negligence:

Regarding Reg's claim, discuss the possible defense of contributory negligence. Assess whether Reg's
actions at the pedestrian crossing could be considered negligent and discuss relevant legal standards.

8.

Defenses Against Bert's Claim:

Explore defenses available against Bert's claim. Highlight section 149 of the Road Traffic Act 1988 and
Alf's inability to claim that Bert voluntarily assumed the risk of injury in a getaway vehicle.

6 take them in this order

as bert is a more clear-cut situation whereas there is a bit more to say on Reg

7 Normally, because this is only a partial defence, it should be dealt with last; however, as there is no

question of the full defences applying it makes sense to deal with it first as it follows on from the
previous paragraph and allows you to finish with Reg. there will be more success against bert so you can
then clearly focus on that in detail.

8 We do not have much detail in the facts to support this discussion so take care to read what you have
been given and draw on what you can to construct as good an argument as you can.

9 obviously, there are other actions which Alf may face to which the following may not apply so it is
worth clarifying the scope of the application of the defences.

10 As the section will bar the application of the defence, there is no more that needsto be said other
than this. Donot go on and explain what the defence involves, let alone apply the requirements to the
scenario, as it will be a pointless exercise. of illegality which absolves Alf of all liability. the wider form of
the defence, as identified by Gray v Thames Trains Ltd [2009] uKHl 33, applies where the compensation
is sought as a consequence of the claimant’s own illegal act. the question is whether the criminal act
caused the injury; or simply provided the opportunity for it occur with the tortious act being the
immediate cause. this seems more of a case of the former and this is supported by Ashton v Turner
[1981] qb 137 which also concerned an injury suffered by the passenger in a getaway vehicle. As lord
Hoffmann noted in Gray, 11 allowing recovery in such circumstances would offend public notions of the
fair distribu- tion of resources. even though Alf lost control and was at fault for the injury it would be
permissible to deny recovery by bert. If a court were to hold that the claim was not substantially based
on the crime, Alf should be advised that he may be successful in pleading contributory negligence on the
part of bert. 12 In terms of what reduction would be made, Alf should be advised that under the Act
damages cannot be reduced by 100 per cent even if it was bert’s idea to take the car and drive in that
way (Pitts v Hunt [1991] 1 qb 24). In conclusion, 13 Alf should be advised that he owed both Reg and
bert a duty of care which was clearly breached. As those breaches caused the injuries, he would be liable
notwithstanding that the extent of Reg’s injuries were worse than could have been fore-

seen. However, owing to the illegality of the situation, Alf will have a defence against bert.

11 try always to be specific as to who said what you are about to advance from the case as it shows
greater knowledge.

12 even if you think that the illegality defence would certainly apply, you should still discuss this, as
there is a possibility the other defence would not be applied. Further, by doing so you show that you
know not only about this , but also how it relatesto the other defences. a conclusion, in negligence
problem questions, as there are several issues, sum up events by recapping what you have discussed
throughout. Make your answer stand out
■ Read Langley v Dray [1998] PIqR P314 and draw on the judgment of stuart-smith l J to support
your discussion of the nature of the duty owed by motorists and the reasons

for it.

■ consider the validity of the ‘eggshell skull’ rule.

■ explain the policy factors which justify defences to an action for negligence when liability

has been made out.

■ mention how Alf could also face a claim from eddie for trespass.

Don’t be tempted to . . .

■ show your wider knowledge of the tort by raising aspects which are not applicable to the
cenario. For example, there is no need in relation to causation to discuss anything more than the ‘but
for’ test.

■ Repeat things you have already discussed by taking each claim independently of each other
from the outset and, therefore, having two paragraphs on duty and breach.

■ explain in detail why there is illegality at the heart of the issue.