Tort Law Essay

In Australia, drunk driving and its impact

In Australia, drunk driving has had a terrible impact on the nation's roadways. Millions of dollars' worth of property is damaged every year when careless drivers cause their cars to veer off the road, and thousands of people are killed and severely injured as a result.

Laws regarding drunk driving in Australia

All States have laws that forbid drivers from operating a vehicle while intoxicated and when their blood samples have an alcohol content above a predetermined amount, also known as blood alcohol concentration (BAC). These laws impose punishments on those who are deemed guilty based on the substantial evidence that was used against them. This paper purposes to present legal arguments as advice for Rebecca against the drunk-driving actions of her friend Michelle.

The circumstances and issues in Rebecca and Michelle's case

Rebecca and Michelle attended a performance party and opted to drink wine in one of the bars found in the premises while waiting for the gate tickets. Rebecca realized after the performance that Michelle was too drunk to drive. However, she accepted the lift home from her friend, who obviously would drive dangerously to cause damages to either. Rebecca is the one who intends to seek legal redress must know that she is liable for ignorance of the law. Then her friend violated the drunk-driving laws leading to the negligence suit.

Regulation and the applicable tort case

This case falls under the tort and drunk-driving. Negligence is the conduct below what the society value to be reasonable. When the unreasonable conduct results into injury, Michelle is liable according to the substance of the laws. Our expected plaintiff here must make it open what constitutes the unreasonable conduct by a matter of fact finding and presentation. The case would fall under the unintentional torts. According to the Australian law, unintentional tort is the situation where the accused is not answerable because of acting intentionally but failed to exercise a reasonable standard of care as dictated by the right-thinking members of the society and expressed by the judges (Cockburn and Madden). Such a case is applicable if the plaintiff is owed a duty to care by the defendant.

The duty to care and its implications

The duty to care in civil regulation dictates that any reasonable person is expected to act or show due care to avoid the harm that is reasonably foreseeable in case of failure. In the Australia, all motor vehicle operators have this duty to care obligation imposed on them. On the drunk-driving provisions, all motor vehicle operators are prohibited from driving when drunk. This should be arrived at when blood tests of the drivers ascertain the alcohol level is beyond the BAC level. This must be conducted by the traffic officers after obtaining search warrants from the courts, except for an exigent situation (Eric, 34-36).

However, the tests will be deemed to breach the suspected drunk-driver's privacy as provided for in the Criminal Law (Forensic Procedure) Act 2007. This act provides the right of the people to be secure in their persons, houses, and effects, against unreasonable forensic procedures supported by Oath and describing the particular place to be searched, or things to be seized.

Application and establishing a case against Michelle

The case of Rebecca is a typical tort case. According to Eric (14-15), torts are civil lawsuits where an individual, groups of people or entity alleges that another person, group of people or entity perpetrated some harm. For Rebecca, her friend was drunk and drove careless, leading to the crushing of the vehicle. This is outright negligence. As a citizen of Australia, both Rebecca and Michelle have legal obligations. Rebecca, as the plaintiff, has negligence as a substantive cause of action to sue the defendant, Michelle, as provided by private law. Therefore, the burden of proof falls on the former to establish that all the allegations against her friend happened.

Rebecca could have a stronger case against Michelle if she can prove that her damages arose due to drunk-driving. The problem is that the time to prove that Michelle was drunk may have elapsed. Usually, the Criminal Law (Forensic Procedure) Act 2007 forbids blood tests conducted without authorization or court order (Legal Service Commission). Practically, the level of alcohol in Michelle's blood reduces as time goes. From the letter of tort laws, the Rebecca vs. Michelle case is valid. The defendant, by virtue of being a motor vehicle operator, owes the plaintiff a duty to care irrespective of the prior relationship. This implies that upon a sufficient proof that Michelle owns a functional driving license, it was her responsibility to reason that her actions of drunk-driving led to an unintentional damage to the friend, Rebecca.

The burden of proof lies on the plaintiff in such civil litigations, up to the point where the plaintiff has established a prima facie case. For Rebecca to take legal actions on her friend for negligence, she has to prove the case by a preponderance of the evidence. This is that degree of proof more probable than not. It is, therefore, upon Rebecca to gather all the footages recording the instances where she pleaded twice with Michelle to stop and drop her when friend started driving dangerously.

For Rebecca to proceed with her suit, which she does to win, first she must show that the defendant (Michelle) had an obligation to be careful. This is possible if Rebecca justifies that the driver license used that day belonged to Michelle. All legal persons owning driving licenses in Australia owe the public duty to care. Secondly, the plaintiff has to show that Michelle was not careful. This is where I can advise Rebecca that she is likely to face a tough hurdle to prove that her friend was driving while drunk. She has to ensure that the officers who reported at the accident scene conducted blood tests or breathe tests on Michelle according to Road Traffic Act 1961 and the Road Traffic (Miscellaneous) Regulations 2014. Thirdly, the carelessness of Michelle was the actual cause and not-too-indirect and not-too-far-fetched cause of the broken leg and other damages. In this aspect, Rebecca needs to have a clear health record on diseases likely to cause similar injuries.

Conclusion

Australia's case laws provide for tort laws and drunk-driving regulations which are litigated on a case-by-case basis. Rebecca has a strong cause of action to sue Michelle. As a vehicle operator, she owes Rebecca duty to care. The actions to drink-drive subjected the two to a foreseeable danger, hence the damages forming the subject of the suit. However, this case raises question about why Rebecca allowed to be driven by her drunken friend while she knew it was an offense and also a risk to their lives.

Works Cited

Cockburn, Tina, and Bill Madden. "Strategically pleading intentional torts claims in medical cases." Precedent (Sydney, NSW) 130 (2015): 32.

Johnson, Eric. Eric Johnson. Hal Leonard, 2014.

Legal Service Commission, POLICE POWERS AND FORENSIC PROCEDURES. Retrieved on October 17,2017, 2017, from http://www.lsc.sa.gov.au/dsh/print/ch05.php