In the case of Anh and Bao, it is quite controversial to conclude it.

Let’s begin by

summarizing the situation. Anh, a 25-year-old woman, was hit by Bao's car while crossing

the street. Bao, a 60-year-old man, was driving over the speed limit, and was not paying

attention to the road (he was talking on his cell phone and was eating a sandwich). Anh was

seriously injured and spent several weeks in the hospital. She was unable to work for several

months and lost a significant amount of income. The case will be discussed detailedly below

about what if Anh sued Bao.

According to the information on torts by Clarkson & Miller (2018), there are two kinds of

torts: intentional torts and unintentional torts. The circumstances surrounding the tort and its

mode of occurrence—intentional or negligent—play a major role in classifying it. When

someone or something is intentionally violated, it is considered an intentional tort (fault plus

intent). When an obligation to conduct appropriately is broken, it is considered negligence

(fault without intent). Based on the definitions provided above, Bao might commit

unintentional torts. However, to win the lawsuit, Anh needs to prove Bao had done each of

these following elements: duty of care,breach of duty, causation and damages. In fact, based

on the facts provided of the case, Bao actually satisfied all these elements.

To be more specific, firstly, duty of care means the defendant owed the plaintiff a duty of

care. So if it is reasonably foreseeable that someone might suffer some sort of harm or loss

because of something others do, then that person owes you a duty of care (What Exactly Is

Duty of Care, n.d.). In this situation, Bao, as a driver, has a duty of care to drive safely and to

avoid causing harm to other people on the road. But he did cause Anh to suffer from injuries

by the accident.

Secondly, the definition of breach of duty is that the defendant breached their duty of care.

This means that the defendant did not act in a way that a reasonable person would have acted
in the same situation (Clarkson & Miller, 2018/2020, pp. 112–130). Unlike normal drivers,

Bao drove over the speed limit, talking on his cell phone, and eating while driving.

Thirdly, if a person breaches a duty of care and someone suffers injury, the person’s act must

have caused the harm for it to constitute the tort of negligence (Clarkson & Miller,

2018/2020, pp. 112–130). As mentioned above, Bao breached his duty of care and caused a

car accident, so he may be liable for the injuries of Anh that were caused by the accident.

Finally, with regards to the damages element, the plaintiff must have suffered a legally

recognizable injury (Clarkson & Miller, 2018/2020, pp. 112–130). To recover damages, the

plaintiff must have suffered some loss, harm, wrong, or invasion of a protected interest. If no

harm or injury results from a given negligent action, there is noth- ing to compensate, and no

tort exists. So in this case, Anh was injured in a car accident by Bao, she may be able to

recover damages for her medical expenses, lost income, pain and suffering, and other losses.

However, Bao can raise some defenses such as contributory negligence, assumption of risk,

and comparative negligence. To clarify, at first, contributory negligence is the plaintiff's

failure to exercise reasonable care for their safety (Kagan, 2019). Contributory negligence

can bar recovery or reduce the amount of compensation a plaintiff receives if their actions

increased the likelihood that an incident occurred. Bao could argue that Anh was also

negligent and that her negligence contributed to her own injuries. For example, Anh was

crossing the street outside of a crosswalk or that she was not paying enough attention to

traffic.

Secondly, assumption of risk exists when a plaintiff who voluntarily enters into a risky

situation, knowing the risk involved, will not be allowed to recover. Assumption of risk
requires two elements: knowledge about the risk and voluntary assumption of the risk

(Clarkson & Miller, 2018/2020, pp. 112–130). Bao could defend that Anh knew that he was

speeding and that she should have waited for him to pass before crossing the street.

Lastly, the doctrine of contributory negligence can be replaced by a comparative negligence

standard. Under this standard, both the plaintiff’s and the defendant’s negligence are

computed, and the liability for damages is distributed accordingly (Clarkson & Miller,

2018/2020, pp. 112–130). For example, Anh's recovery can be reduced if she is found to be

partially responsible for her own injuries. Bao can also read reference documents about real

cases about it, or “50 Percent Rule” and “51 Percent Rule”, and check his camera on the car,

then try to find facts to reduce the compensation. However, from my assessment, Bao can

only reduce his compensation at a maximum rate of 20% because he committed a lot of

faults.

So if Anh successfully sues Bao, the damages that she may recover include medical expenses,

lost income, pain and suffering, and punitive damages. And the amount of damages that she

is awarded will depend on the specific facts of her case and the laws of the jurisdiction in

which she files her lawsuit.

Nevertheless, both Anh and Bao will definitely suffer from significant impacts. Regarding

Anh, she has suffered serious physical and emotional injuries as a result of the accident. She

may also experience long-term health problems and disabilities. In addition, she may suffer

from post-traumatic stress disorder (PTSD) and other mental health problems. About Bao,

besides experiencing financial hardship if he is ordered to pay damages to Anh. It is possible

that the court could order Bao to have his driver's license suspended or revoked as part of his

punishment, so he may not drive for a long time. Moreover, he may feel guilty and ashamed

for what he did.

Because Tort law can impose liability on wrongdoers (Kadner Graziano, 2023). This means

that wrongdoers may have to pay damages to their victims to compensate them for their

losses. Moreover, this law also creates incentives for people to avoid causing harm to others

by imposing liability on them if they do. This is because people are less likely to engage in

risky or reckless behavior if they know that they could be held liable for the consequences.

So it will aid in preventing some kinds of illegal activities such as Bao's. In addition, tort law

also provides a way for victims of wrongdoing to recover compensation for their losses. In

this case, Anh’s compensation may contain medical expenses, lost income, pain and

suffering, and other losses. So it can help Anh feel better.

In fact, there are also the policy considerations behind the torts of negligence and battery. As

the torts of negligence and battery are different in terms of the intent required. Negligence is

a failure to exercise reasonable care, while battery requires a bad intent or willfulness

(Moore, 2012). Courts have struggled to define what constitutes a "bad intent" or "willful"

act, but have held that a "constructive intent" can be inferred from a defendant's reckless

disregard for consequences (Moore, 2012). Both are important, so it is necessary to assess

them carefully because of their purpose. Negligence law’ purpose is designed to deter people

from engaging in careless and reckless behavior, while battery law’s one is designed to

protect people from intentional violence. Take an example in 2010 between plaintiff and Dr.

Gundara (defendant), the plaintiff developed a severe infection after undergoing surgery at

Wagga Wagga Base Hospital over 1 month ago. Though the plaintiff received over 1 million

dollars for winning the lawsuit, she received this compensation based on negligence’s law,

not battery (she sued the defendant to commit the battery) (Hall & Wilcox smarter law,

2017). In this case, it deterred people, especially doctors, from acting recklessly, and

plaintiffs to read carefully about laws, especially negligence and battery, before suing others.
Now I will discuss a little based on hypothetical situations. Firstly, if Bao had been driving

under the influence of alcohol, he would be held liable for gross negligence (Harris & Harris

Injury Lawyers, 2021). Gross negligence can be defined as an intentional failure to perform a

manifest duty in reckless disregard of the consequences of such a failure for the life or

property of another (Clarkson & Miller, 2018/2020, pp. 112–130). If Bao is found to be

guilty of gross negligence, he could be held liable for all of Anh's damages, including her

medical expenses, lost income, pain and suffering, and punitive damages. The punitive

damages are awarded to punish the defendant and deter them from engaging in similar

conduct in the future (Clarkson & Miller, 2018/2020, pp. 112–130). In addition to civil

liability, Bao could also face criminal charges for driving under the influence of alcohol. The

criminal charges would vary depending on the laws of the jurisdiction in which the accident

occurred. However, Bao could face jail time, fines, and a suspension or revocation of his

driver's license if he is convicted of DUI (FindLaw , n.d.).

Secondly, if Anh had crossed the road illegally, it is likely that the court would consider both

her contributory negligence and Bao's aggravated negligence. If the court finds that Anh's

contributory negligence was greater than Bao's aggravated negligence, then Anh may be

barred from recovery (based on 50 Percent Rule) (Clarkson & Miller, 2018/2020, pp. 112–

130). However, if the court finds that Bao's aggravated negligence was greater than Anh's

contributory negligence, then Anh’s recovery of damages may be reduced based on the

judge’s decision.
Thirdly, if Bao had stopped at the crosswalk, but Anh had slipped and fallen in front of his
car. If Anh's own negligence contributed to her injuries, her damages may be eliminated or
just reduced. The reasons for the reduction exist is when Anh was crossing the street, and the
light of Bao’s car blinded her eyes or she felt scared of the high speed of Bao’s car. So she
slipped and fell in front of his car, it could prevent her recovery from being denied, and even
gain the full recovery but in the less severe outcome.