Evaluation of liability in negligence Flashcards
What was the problem with the neighbour principle?
Turned out to be too wide as it established a duty of care in almost every situation.
Anyone affected could potentially have a claim.
Judges decided to decide who should and should not have duty of care. Too much power.
Whats the problem with the current Caparo test?
Can still make policy decisions, as it it must be ‘just and fair to impose duty’. If they do not want to impose a duty they don’t have to.
What is the problem with negligence being a fault-based tort?
Claimant has to prove that the defendant owed a duty of care, has caused damage, also have to prove they have fallen below the standard of care expected. Adds extra burden.
What are the courts criticised about when it comes to doctors?
Have made it very difficult to prove negligence in medical cases.
Has been seen as protecting doctors from liability.
If there is even another possibility of something else potentially causing the damage they will defer the liability to someone else.
What is criticised about the damage aspect of negligence?
Type of damage must be foreseeable which further limits liability.
Courts are keen to draw a line somewhere to prevent the defendant being liable for everything that could possibly happen.
