Law of Tort - evaluation of negligence Flashcards
What are the 5 advantages for duty of care
Purpose is to allow the possibility of legal liability to be imposed - it establishes the range of persons, relationships and interests that should be legally protected from negligently inflicted harm.
Deciding whether a duty exists is an effective way of filtering negligence claims before issues of breach - causation and the amount of damages considered - may help to reduce number of claims brought to court
Encourages good behaviour, if you owe someone a duty of care you will take steps to avoid being sued
Duty of care can hold people in positions of power accountable
Robinson 2018 clarified that the caparo test did not have to be used every time - making law clearer
What are the disadvantages of duty of care
Caparo test can be confusing, final stage ‘fair just and reasonable’ which is very vague - cannot be predicted when a judge will find it satisfied or not
It is still not entirely clear how much proximity is needed for there to be a duty of care - test has never been fully established
The court can use the caparo test to decide if there is a new duty of care, which could be seen as unfair
What are the advantages of breach of duty
Fair - we qualify the reasonable man test depending on the circumstances such as Bolam which adjusts standards for professionals
Children are judges at the standard of children their age
The test is objective - what a reasonable person in your position would’ve done, not down to opinion
What are the disadvantages of breach of duty
Whilst making adjustments for age and professional status, there are some things we do not adjust the reasonable man test for (e.g if someone with a mental deficiency commits an act that could be considered negligent, the reasonable man test will not incorporate the mental deficiency as a circumstance and only the ordinary reasonable man test will apply)
This test does not take what you know into account, but rather what you should have known
What are the advantages of damages
The but for test is generally fair - the defendant will only be liable for the damage then breach of duty actually caused
Legal causation is a part of damage which is generally fair as defendant will not be held responsible if there is an intervening act
What are the disadvantages of damages
Thin skull rule could be seen as unfair - means D can be held liable for injuries they had no way of predicting
Remoteness can be unfair - just because an injury was not foreseeable means D isn’t liable, even though duty if care has been breached
It can be hard to establish factual causation if there were multiple causes of injury
