Negligence Evaluation Flashcards
(21 cards)
What are the positives about Duty of Care?
Major change in the law in 2018 where a duty of care can be assumed if there is an established legal principle due to existing precedent (Robinson vs Chief Constable of West Yorkshire Police) Should make claimants job easier as they can find a similar case before they don’t have to go through the Caparo test but some cases are bound to fall into grey areas where the 2 parties feel differently over the ELP causing some uncertainty.
In the past there was too much judicial discretion, and judges could easily create new laws. One could argue that judges creating law is wrong as they are not elected and results in large uncertainty. Anns vs LB of Merton (BAD) could have resulted in a vast expansion of DOC, but Murphy vs Brentwood (GOOD) reversed Ann’s and said that judicial decisions had to be close to an existing precedent resulting in a slow expansion of liability. Hopefully it will bring some stability and certainty in most cases.
Emergency services (Munroe vs London Fire Brigade) in an emergency they owe a DOC for acts and not omissions which is very reasonable as owing a DOC for both in an emergency situation would place too great a burden on the emergency services.
What are the negatives about Duty of Care?
Seemingly good claims might not be allowed as they are not in the best interests of society, could be because it would open the floodgates and reasons are found not to allow the claims - Alcock vs Chief Constable of South Yorkshire Police - It is in the best interests of society to limit claims, but individuals lose out and do not receive corrective justice - Bad aspect
What are the reforms for Duty of Care?
Government compensation scheme like in New Zealand in the past, but is unlikely to happen due to the cost
What are the positives for Breach?
There are many different factors that are considered to determine if the breach was reasonable
Allowing certain characteristics of the defendant to be considered allows the law to be applied fairly to all defendants
Allowing characteristics of the claimant to be considered offers more vulnerable claimants greater protection - Paris vs Stepney (Disability), Orchard vs Lee (Age)
It is fair that there is no liability if the risk taken benefits society more than the potential harm - Watt vs Hertfordshire
It is fair that the defendant is judged against what is common practice and the knowledge of the time - Bolam
What are the negatives of breach?
Does not take into account the defendant’s actual experience just the standard of skill that is expected - Nettleship vs Weston
Claim may fail if the defendant’s actions are considered reasonable even if others in the profession have differing opinions - Bolam
‘Common Practice’ allows professionals to set their own acceptable standard resulting in claims being easier to defeat - Bolam + Boliatho (Contrasts)
What are the reforms for breach?
Take into account individual case facts but unlikely to happen as it decreases certainty and consistency in the law whilst giving judges too much discretion
Government compensation scheme like in New Zealand in the past, but is unlikely to happen due to the cost
What are the positives of damage?
Holtby vs Bringham & Cowan - Fair on both claimant and defendant as the claimant receives full compensation, and the employers only pay for their proportion of the damage. They will also be covered by insurances, and they have taken premiums to cover it over the years.
Is the exception to the rule ‘type of damage has to be foreseeable’ which is the thin skull test fair?
Fair for claimant who receives compensation but unfair on defendant who had no knowledge that that type of damage would occur due to the pre-existing condition - Balance of conflicting interests
What are the cases and points for the asbestos/mesothelioma situation?
Fairchild vs Glenhaven Funeral Services - Mesothelioma caused by a single fibre of asbestos entering the lungs and can take up to 30 years to present itself, meaning it is very difficult to prove. In Fairchild many companies didn’t exist so claimants didn’t receive compensation which is an injustice, and it is very hard to prove what company caused the exposure that resulted in mesothelioma, so it is a negative. However, it was ruled that the claimants could prove causation on the ‘balance of probabilities’ which is good to limit the injustice and provide injured claimants with compensation.
Barker vs Corus - House of Lords agreed to apportion damages based on the time each company had exposed the claimant to asbestos, so unless they sued all the companies (which is costly) they would lose a % of their compensation/damages which is unfair for the claimant
Compensation Act 2006 - Said a person contracting mesothelioma, the employer can be held fully liable, and the victim can sue 1 employer for the full amount. The company can recover a proportion from the other companies. This is the current law which is good because then the claimant can receive 100% of their damages without the large legal fees of multiple court cases and it is fair on the defendant as they can recover some of the damages from the other companies involved. Insurers will generally pay out and they take the premiums.
What is the case and point for an intervening act?
Spencer vs Wincanton - Said that unwise behaviour doesn’t break the chain of causation only if the result is fair. The employers had accepted the liability for the amputated leg but not for the new injury. The Court of Appeal said that what happened to Mr Spencer was a foreseeable result of the defendant’s negligence although the damages were reduced by ⅓ due to contributory negligence. This is the new/current law and is bad because it could potentially lead to many claims for the same individual act that could go on for a very long time. It also places too great a burden on the defendant.
What is the possible reform for damage?
Abolish the thin skull rule to protect defendant more - unlikely as it would still give rise to a BCI but just shifted the other way
Reverse the decision in Spencer vs Wincanton to reduce the burden on D and to limit the number of claims for a single injury, however, it would restrict the compensation available for the claimant when they are constantly impacted by a life changing injury
What do you do for the AO1 of an Aims of Tort essay?
Briefly run through all 3 aspects of negligence
What are the first 2 aims of tort and the AO3 points for them?
Tort law should provide compensation and justice for the victim:
This is usually achieved as the Thin Skull Rule ensures that pre-existing conditions, the damage need not be foreseeable Smith vs Leech Brain
The objective standard usually works in the victim’s favour Nettleship vs Weston - BCI
What is the third aim of tort and the AO3 points for it?
Morality/Fault:
General issue is the defendant who is at fault usually won’t have to pay due to Vicarious Liability/Insurance. However, insurance premiums will rise so there arguably is a moral element.
Where not at fault you won’t be sued Doughty vs Turner Manufacturing
Where it’s worth taking a risk, you won’t be sued - Social Utility - Watt vs Hertfordshire
Orchard vs Lee - Positive as we would not want children to be sued unless they are being incredibly reckless.
A small amount of fault can lead to huge compensation and vice versa - NEGATIVE
What is the fourth aim of tort and the AO3 points for it?
Deterrent:
Knowing that you can be sued can act as a deterrent especially for firms. You are expected to take great care if the activity is extremely dangerous and could result in serious injury - Paris vs Stepney. Where an injury is likely you must take careful precautions - Bolton vs Stone
What is the fifth aim of tort and the AO3 points for it?
Loss distribution:
Most negligence claims are met by companies or through insurance.
What are the potential reforms for an aims of tort essay?
Government pays out like in New Zealand in the past, this would be great for the victim for points 1 & 2 but not points 3 & 4 and is unlikely to happen due to the cost
What do you do for the AO1 of a fault in negligence essay?
Briefly run through the AO1 for negligence
What are the AO3 points for a fault requirement?
Floodgates - Proof of fault acts as a control on negligent actions Alcock vs CCSYP
Proof of fault acts as a barrier to a compensation culture
Laissez Faire Policy - Only sue someone when they are at fault
Acts as a deterrent
What are the AO3 points against a fault requirement?
Public Policy - In cases where the party is at fault but is overlooked for policy reasons it leaves the injured party without justice or compensation - Alcock vs CCSYP
Negligence should compensate and not punish, it should compensate the claimant for the losses but not punish the defendant especially where the level of fault is low but the compensation paid is high
Objective Standard - An objective standard is not always fair especially when it doesn’t take individual circumstances into account - Nettleship vs Weston (BCI) Unfair?
What are the potential reforms for a fault in negligence essay?
State run benefit systems such as New Zealand
No fault systems such as Canada
Consider the Person Commission and its recommendations as well as recent suggestions for using mediation and introducing statutory limits on personal injury claims
