Evaluation Negligence

Question 1

How is proving the fault element an evaluation of negligence?

Answer 1

• Fault= = blameworthiness. The need to prove fault can result in problems.
• Proving fault means that we need to prove who is to blame , this causes issues because there may be problems relating to cost due to the fact that medical and expert evidence such as an eye witness may be costly

Question 2

Why is common law( judge made law) an evaluation of negligence?

Answer 2

Due to the fact that the law on negligence has been developed by judges it is undemocratic because it does not reflect the will of parliament because judges are unelected unaccountable bodies. It fundamentally goes against parliamentry sovereignty. Judges lack the knowledge or experience to make social or economic judgements

• Counter: Some may argues that judges are fit to adapt/ develop law because they have the knowledge and can modernise law bringing it up to date with social change and changing societies

Question 3

How is judges making decisions seen as unfair or not unfair? Discuss

Answer 3

Unfair:
- Judges making decisions based on policy is unfair on claimants because it does not reflect justice but rather society for example in the case of hill v constable of west Yorkshire relating to the jack the ripper victim

• Goes against parliamentry sovereignty because judges are making decisions when they are unelected and unaccountable. They are adopting a law making role.

Fair
- To protect the legitimacy of the law policy based decisions are fair because it means that courts are not open to floodgates. evidence for this can be presented in the case of Bourhill v young in relation to the law on proximity tis would have encourages hundreds of other claims that come from unrelated strangers

Question 4

Is the law on breach of duty fair ? Give some arguments for and against

Answer 4

Fair
- 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 the defendant. This includes

• Considering the size of the risk and the practicality of eliminating it means that avoiding risk is not onerous for the defendant

Unfair

Question 5

What are some general criticisms of the law on negligence ?

Answer 5

• Some suggest that it is unfair to make secondary victims pass theAlcock criteriaas they are still suffering from the mental injury. However, it is justified by the floodgates arguments – it limits the number of claims.
• Some argue that allowing claims in negligence has led to a compensation culture.

Question 6

What are some potential reforms

Answer 6

• Reforms that link to close ties of love and affection- One bill was proposed as ‘Negligence and Damages Bill’ in 2015. This Bill attempted to rectify the issue of ‘close tie of love and affection’ by defining categories for those who had a relationship of close ties of love and affection, without the need to provide proof. But unfortunately failed after its first reading, leaving secondary victims who are not spouses or parent and child to have to prove their special relationship in court.