eva of negligence Flashcards by Charley Powell

What is the purpose of law of negligence

To put the claimant back into the position they were in before the incident by providing compensation for a person who has suffered loss(injury or damage to property) to also achieve justice

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How does c prove that D was at fault?

C is going to need evidence to prove that the D is at fault for the accident( can’t claim without it)

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example of evidence to prove D was at fault

eyewitness testimony (including C)
engineers report
photographs of the scene
photographs of the damage to vehicles

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Why might proving D is at fault be difficult?

may not be any eyewitnesses other than C and D
C may have to try and locate eyewitnesses
C may to be able to locate D-hit and run
D may not be insured

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what happens if C cannot prove D was at fault?

-C does not receive any compensation for any injuries they may have received
-C does not receive any compensation for any vehicle damage that may have occurred, so they may have to pay for this themselves if they have a third-party fire and theft insurance
-C’s car insurance premiums are going to go up
-if C has comprehensive insurance, –C will have to pay their excess and will not be able to recover this from D

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what is the accident compensation cooperated (ACC) as a alternative system to prove fault

New Zealand entity, responsible for administering the country’s no fault, accidental injury compensation scheme

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what does ACC provides

financial compensation and support to citizens,residents and temporary visitors, who have suffered personal injuries.

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ACC It is a sole and compulsive provider for what

for work and non-work related injuries.

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the ACC is on what

a non-fault basis, so that anyone regardless of the way in which they suffered an injury has coverage under the scheme

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due to the schemes non-fault basis, people have suffered personal injury do not what

people have suffered personal injury do not have the right to sue it an at fault party

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What did Pearson believe what

tort’s traditional role of compensation has become outdated with the rise of the welfare state since the end of world war ll

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Pearson saw what ( law reform ideas)

saw the benefits system as having the primary role of providing compensation and security following an accident, and litigation as being secondary.

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As a result, commission recommended what ( law reform)

as no-fault insurance scheme for RTAs, similar to the subsequent New Zealand ACC, and a scheme of strict liability for consumer protection

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What does it mean one of the purpose of the law of negligence is to achieve justice

-It is fairness
-Equal and consistent application of rules
-Does compensating people achieve justice

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What does judges experienced (ADS- judicial law aiming negligence)

They have the experience to deal with cases

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What can judges develop the what (ADS-judicial law aiming in negligence)

the law to adapt to changing circumstance eg. montgomery v lanarshire changed bolam so that Drs are now expected to warn patients of material risks of treatment

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What can judges make decisions based on what (ADS- judicial law aiming in negligence

Judges can make decisions based on the facts of the cases in front of them

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What should not be making decision involving what (DISA- judicial law aiming in negligence)

involving issues of economic or social policy because they are
A)Unelected
B)Lack of information

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Changes in the law made by judges can cause what (DISA - judicial law aiming in negligence

Judges cause confusion and uncertainty

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Can lead to what where a judges make policy decisions as in what (DISA- judicial law aiming in negligence

hill v chief constable of west york- this can lead to injustice to the claimant.

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What is a economic policy

It is a course of action that is intended to influence or control the behaviour of the economy

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What can be argued with a economic policy

That payment of compensation for negligence is about efficient an allocation of resources

What is a social policy

It is a policy, used for welfare, or social protection

Policy that people should be compensated, if what

they are injured as a result of negligence, or another person provide for the welfare of those who have been injured.

What are the different elements of tort

- duty of care - breach of duty - damages

What did lord roger said

‘ the world is full of harm for which r the law furnishes no remedy

What case made the lord atkin’s neighbour principle

Donoghue v Stevenson

What are the 3 part of caparo test

Was damage or harm reasonably foreseeable? Was there proximity? Is it fair and reasonable to impose a duty?

What case established the caparo test

Robinson v chief constable of west yorks

When deciding whether a duty of care exists is effective way of what

Effective way of filtering negligence claims before issues of breach, causation and compensation are considered

Deciding with DOC helps to reduce what

The number of claims brought to court

It also helps reduce the number of what claims(DOC)

Spurious claims ensuring that the legal system only deals with worthy cases this saving them and expense

in theory to can sue in why (donoghue v steveson princple)

possible to sue in any situation where harm or damage is reasonably foreseeable

why is deterrence an ADS- establishing DOC

neighbour principle incentivises people/organisations to consider parties that might be impacted by their actions- donoghue v stevenson- positive social impact of manufacturers owing a duty of care to customers.

the caparo has improved by what (ADS- establishing a DOC)

Caparo test improved by providing a three-stage test for novel cases

why is flood gates a ADS(establishing DOC)

tests such as foreseeability & proximity regulate spurious claims ensuring that the legal system only deals with worthy cases thus saving time and expense

why is establishing of DOC is fair, just & reasonable

provides protection to emergency services by considering the public interest in not unduly hindering socially desirable activities

what is the historical development (DISA- establishing DOC)

Historical development has been ‘piecemeal’ over time and is not codified in a coherent body of statue

why is the term 'reasonable' a negative

vague

what is negative impact of the term 'reasonable'

beneficial but risky activities could cease due to a fear of liability. This could include public service providers such as police and medical staff as well industry development

the standard of care does not generally what (ADS- estab breach DOC)

the standard of care does not generally depend in the characteristic of the defendant so that things like inexperience will not deny a claim

the objective standard means what (ADS establ breach DOC)

that recovery can generally be excepted for foreseeable damage

'thin skull' denies what (ADS- establi breach DOC)

denies defendants an excuse only foreseeable harm is recoverable

reasonableness can be altered by what (ADS- establi breach DOC)

be altered by the claimants characteristics and the benefit to society

professional practices might considered what (DISA - establis breach DOC)

might considered marginal may still be accepted, and there is a danger of professionals ‘closing rank’

there is potential what (DISA- establish breach DOC)

there is potential unfairness in expecting the same of inexperienced defendant

the thin shull rule also carries potential what (DISA- establish breach DOC)

potential; injustice as arm and/or damage may not be foreseeable

principles of causation are aimed at what (ADS- causation)

are aimed at compensating the claimant for loss which is foreseeable and attributable to the defendant is generally fair

the but for test provides what (ADS- causation)

a test that allows all claimants to be treated in the same way the compensation act 2006 provides justice for claimant as that person will receive compensation in full

the defence of contributory negligence and Volneti (consent) recognise what (ADS- causation)

that a victim may have worsened their own condition or knowingly took risks and should therefore bear some of the burden of causation

the but for test is only appropriate where (DISA- causation)

only appropriate where there is one defendant and one cause of damage- the claimant may not receive compensation despite a duty having been breached

the difficulities by a C is proving what(DISA- causation)

proving causation where there are multiple causes could result in the claimant not receiving compensation, which is unfair

the rules concerning Novus actus interveniens do not provide what (DISA causation)

consistent outcomes The rules on remoteness of damage can be unfair to a claimant as they are a means of limiting the defendants liability

the arbitrary approach taken by what (DISA- causation)

the courts in determining what ‘type’ of damage may be foreseeable may not be fair - the narrow v wide approach