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Evaluation Flashcards

(13 cards)

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1
Q

TORT
What are the general proposals for reform on tort law

A
  • Replace litigation compensation with tax funded compensation scheme (no fault, just injury)
  • Increase speed, reduce costs, no need for lawyers to prove fault
  • Similar schemes successful in Canada and New Zealand
  • Pearson Committee recommended in 1975, UK govt rejected
  • USA has liability insurance for injury
  • Improve system by pushing ADR
  • Raise small claims Ct threshhold from £1,000 to £5,000 to reduce case volume
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2
Q

NEGLIGENCE
Evaluate the law on negligence surrounding fault based claims

A
  • Fault requires solution through civil Cts
  • This means delay, cost and involvement of lawyers
  • Civil Cts are adversarial and therefore lead to confrontation
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3
Q

NEGLIGENCE
Evaluate the law on negligence surrounding duty of care

A
  • Flexible and developed through case law (Donogue v Stevenson -> Caparo v Dickman -> Robinson v CC West Yorks)
  • Robinson supports judicial precedent and consistency
  • Aim to balance competing interests (avoid suing culture)
  • Fair, just and reasonable protects public bodies (utilitarian)
  • Objective foreseeability test fair to C (Jolley v Sutton)
  • Proximity test fair to D as restricts claims (Bourhill v Young)
  • Replacing neighbour principle prevents flood of claims
  • Robinson v CC West Yorks established no blanket immunity = fair to C
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4
Q

NEGLIGENCE
Evaluate the law on negligence surrounding breach of duty

A
  • Reasonable person test not account for special characteristics = fair to C
  • Can be unfair to learners (Nettleship v Weston)
  • Same standard of care saves state purse
  • Reasonable child test fair to D’s (Mullins v Richards)
  • Professionals assessed by body of opinion fair as Cts lack specialism
  • Profs may stick together
  • Unclear definition of competent body of professional opinion
  • Higher risk = higher precautions (fair to C)
  • Social benefit seems unfair to C (but utilitarian, needs of many > needs of few)
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5
Q

NEGLIGENCE
Evaluate the law on negligence surrounding damages

A
  • But for test fair on D as only liable for harm caused
  • Remoteness of damage hard to assess and unfair on C but fair to D (Wagon Mound)
  • Liable for damage caused in unexpected ways = fair to C (Hughes v LA)
  • Thin skull rule fair to C but not D as unforeseen (Smith v Leech Brain Co)
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6
Q

NEGLIGENCE
Explain the possible proposals for reform of the law on negligence

A
  • Bring under statute for clarity/accessibility
  • Define competent body of professional opinion
  • Test for foreseeability of damages
  • SAME AS GENERAL TORT REFORM
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7
Q

OCCUPIERS LIABILITY 1957
Evaluate the occupiers liability act 1957 (duty to lawful visitors)

A
  • Introduced to raise standards
  • Statute instead of common law to make more clear and accessible
  • Can claim for death, injury, financial loss and property damage whereas trespassers can only claim for death and injury which reflects societies views
  • Statute existed long before 1984 showing shift in societal views
  • Objective test for ensuring reasonable safety = strike fair balance (C has responsibility too)
  • Can be liable for danger even if unaware (higher DoC than 84 which may be unfair on D as unforeseeable but fair on C)
  • Clauses which alter liability = fair and reasonable (child, workmen, warnings, contractors)
  • Not need to warn of obvious risks = fair on D as C has responsibility too
  • Law on contractors = fair balance (take reasonable steps as still responsible but not in full control and so can escape liability
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8
Q

OCCUPIERS LIABILITY 1957
Explain the possible proposals for reform on the law on OLA 1957

A
  • Bring two statutes under same act for clarity and accessibility
  • Define reasonable safety
  • SAME AS GENERAL TORT REFORM
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9
Q

OCCUPIERS LIABILITY 1984
Evaluate the occupiers liability act 1984 (duty to trespassers)

A
  • Common humanity following Herrington BRB (overruling Adie v Dumbreck)
  • Fair to trespassers (especially children, inadvertant/accidental trespassers and people without ill will or knowledge of trespassing)
  • Can claim for death/injury but not damage/financial loss = strikes fair balance and limits claims
  • Easier for occupier to escape liability (not know danger/that trespasser would encounter it)
  • Duty of care to trespassers = unfair to D (inherently unjust, trespassers shouldn’t be there, English mans home is his castle)
  • Difficulty in claiming reflects social views on trespassing
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10
Q

OCCUPIERS LIABILITY 1984
Explain the possible proposals for reform on the law on OLA 1984

A
  • Bring two statutes under same act for clarity and accessibility
  • Clarify between intentional and inadvertent trespassers
  • Warnings not automatically absolve liability as do not ensure safety in practice
  • SAME AS GENERAL TORT REFORM
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11
Q

VICARIOUS LIABILITY
Evaluate why the law on vicarious liability is fair and fit for purpose

A
  • Employees actions benefit employer
  • But for employment, tort would not occur
  • Bear risk of entrepreneurship
  • Responsible for training
  • Expected to monitor work
  • Deeper pockets (TF man of straw, state pocket tax funded)
  • Legally obligated to insure against risks
  • Restorative justice (guaranteed compensation)
  • Distributive justice (burden passed from TF -> employer -> insurance)
  • Encourage vigilance and raised standards, deters complacency
  • Employer has degree of control
  • Not always liable as would place unfair burden on businesses
  • Fair to employers as 3 part test before liable
  • Fair to C as receives compensation
  • More likely to succeed in claim as employee widely interpreted
  • Common law makes flexible to social change (closely connected to employment)
  • Public policy (protects state purse)
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12
Q

VICARIOUS LIABILITY
Evaluate why the law on vicarious liability is unfair and not fit for purpose

A
  • Contrasts basic principles of fault and causation
  • Holds employers liable even if they expressly prohibited practice
  • Rules may be applied inconsistently between cases (Various C’s / Muhammed v Morrisons)
  • Employer liable even without knowledge or if couldn’t have prevented
  • Goes against natural law theory (moral imperatives)
  • Liable for carelessness which cannot guard against
  • Cannot predict/guard against every eventuality
  • Tortfeasor not face much consequence despite fault
  • Use of insurance does not encourage raised standards
  • Disincentivises entrepreneurship
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13
Q

VICARIOUS LIABILITY
Explain the possible proposals for reform of the law on vicarious liability

A
  • Bring under statute for clarity and accessibility
  • Introduce failure to prevent offence
  • Publicity orders (deter, spread awareness)
  • Further focus on individual culpability
  • SAME AS GENERAL TORT REFORM
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Tort (8 decks)

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