esp task 2 indicative content

Question 1

Structure of the law

Answer 1

1) What is the relevant principle -
donoghue v stevenson -
Established the neighbour principle

robinson v chief constable of west yorkshire police- established duty principle, there is a DOC where there are clear, presumed relationships. Courts can look at precedent and common law to guide them on this decision - rulings of past cases where the relationship between the parties are similar to their current case can be applied.

caparo v dickman - 3 stage test
1) was damage reasonably foreseeable - kent v griffiths

2) were the parties close in proximity - king v phillips

3)is it fair, just and reasonable to impose a DOC? - hill v chief constable of west yorkshire police

4) Breach of duty must be assessed, this is defined as a defendant not taking reasonable care in their actions and not meeting the UK standard of a reasonable man. SOC does not consider the intentions of the defendant, but if they had acted reasonably given their circumstances - blyth v birmingham waterworks

Children have a lower SOC - mullins v richards
Trainees have the same SOC as a qualified driver - nettleship v weston
Professionals have a higher SOC - bolam v friern hospital management

BOD risk factors:
1) practicality and cost of taking precaution - Latimer v AEC
2) Degree of risk - Bolton v Stone
3) standard of care - Paris v Stepney borough council
4) social utility - watt v hertfordshire county council

causation
1) factual - “but for” - barnett v chelsea kensington hospitals
2) legal “not too remote”, reasonably foreseeable - the wagon mound

legal remedy - damages
special - financial loss from event to date of trail
general - pain, suffering and loss prevailing after the trail.
1) loss of amenity (enjoyment, long life)
2)loss of future earnings (monetary compensation to provide sufficient help throughout period of work loss)
3) injury/trauma (pain and suffering)
An estimation of figure will be assessed based on what the client had lost.

claimants responsibility
has responsibility to mitigate their loss - if found to deliberately attempt to increase loss for extra compensation, this may reduce their amount of damages/compensation

forms of payment
lump sums- one payment given in one go
structured settlements - periodic payment accounting for changes in circumstance in C’s life

Question 2

ADR

Answer 2

Meaning- A process where individuals can resolve disputes outside of litigation, following a more informal process with increased flexibility.
Courts have power to order parties to follow this process as opposed to court, or to undertake it before considering court, as stated in rule 1.4 of Civil Procedure Rules.

Benefits court by providing its high-priority cases with faster resolution times.

Negotiation - parties directly communicate with each other to come to a settlement, does not necessarily involve a third party

pros-
- cost effective
- accessible for more people
- quicker
-less formal
- parties have increased control: doesn’t have to follow a single, solid process like court, but the parties can dictate the way they discuss their issues with each other, ultimately making the process easier.

cons-
- not legally binding, parties can change their decision or may worsen situation

• if unsuccessful, could be a waste of time and money particularly if parties then have to undertake the court process as last resort, building legal costs.
• unequal power dynamics: one party may have more leverage or influence than another, using their power to convince the weaker party to follow through with an unwanted decision.

Mediation - Similar to negotiation, except a neutral third-party mediator is involved to guide the individuals with coming to a settlement.

pros- cost effective, accessible, easier, less formal, quicker

mediator guides the parties with the aim to resolve the dispute.

cons -
non binding

Clients may choose mediation over negotiation with the expectation that it would be increasingly effective. If unsuccessful, clients waste time and money and are left disappointed.

Mediator may be ineffective or insufficiently skilled.

Arbitration - Parties resolve issues with a 3rd party arbitrator who hears their arguments and evidence at a constituted tribunal, and makes a decision which is legally binding.

pros:
legally binding

tends to be less costly than litigation

quicker

efficient and flexible: parties can alter the process of arbitration, tailoring it to their needs due to how, unlike court, arbitration is a contractual agreement

cons:
potential for high costs: for complex disputes in particular, the price can be more expensive

no jury: the arbitrator acts as both the judge and jury, leading to less diverse perspectives; the decision is formed from a singular opinion.