Andy and his brother Bob are students. They work nights in a factory to earn some money to supplement their student loans.

After they had completed a 12-hour shift, Bob, a fully qualified driver, said that he felt ill. Andy, a probationary driving licence holder, offered to drive them both home in Bob’s car. Although Andy felt very tired, he proceeded to drive. Andy was fully insured and the car was correctly displaying P-plates.

On the journey home, Andy fell asleep and the car drifted across the road into the path of a van being driven by Carl. Carl saw the car Andy was driving coming towards him, so he swerved to avoid a collision but drove onto the pavement and collided with a lamppost. Carl’s van was damaged and the windscreen smashed.

Carl was taken to Princess Margaret Hospital for treatment. He was seriously injured and needed an operation to remove some glass from one of his eyes. Dr Eric operated on Carl but carried out the operation negligently and, as a result, Carl is now blind in one eye.

Required:

a. Applying the test from Caparo v. Dickman (1990), explain whether Andy owes a duty of care to Carl.

b. If it is established that Andy owes a duty of care to Carl, explain:

i. the test which will be used to establish whether a defendant has breached a duty of care owed;

ii. whether Andy has breached his duty of care.