Evaluation of fault based liability Flashcards
- A01: Problems of fault liability
Caparo and three elements in novel situations.
Objective reasonable man
Risk factors
Cost of precautions
Causation
Forseeable case
Langley
Proximity case
Bourhill
Fair, just and reasonable case
Hill and Robinson
Objective reasonable man case
Nettleship
Risk factors case
Paris
Cost of precaution case
Latimer
Factual causation case
Barnett
Remote danger case
Wagon
Fault most relevant for
Duty of care
Causation
Objective test
What undermines fault?
Thin skull rule
- Arguments for fault A03
floodgates
Compensation culture
Accountability
Floodgates case
Cole
Compensation culture case
Tomlinson
- Arguments against fault A03
Sometimes fault cant be proven
Public policy cases overlooked
Unpredictable decisions
Fault can’t be proven case
Bolton
Public policy case
White
Unpredictable decision case
Hunter
Cost
If loss more fees to pay.
ADR also involves costs.
Ct case expensive.
Delay
Ct takes 1-2 years
Lawyers
Adds costs.
Can be difficult to find lawyer with the expertise.
Adversarial process
Negotiated settlements less likely
Face difficult questioning
- Reform A01
State run schemes like Canada
More court settlements
Raise PI from 1000 to 5000
Road accidents higher than 5k
- Reform A03 state run schemes like Canada advantage
No lawyers no insurance companies so no delays
2 Reform State run schemes disadvantage
Employers have to pay to make it work
People less careful
2 Reform state run scheme Who recommended but it was never auctioned?
Pearson report 1975
2 Reform raise Pi limit advantage
Reduce court backlog as reduce claims
3 Improve court system
Encourage more group litigation
Encourage more ADR
Vaccine Payments Damage Act 1979
3 Improve court system Vaccine Payments Damage Act 1979
Increase level of compensation from current max 120,000
