Negligence AO3^

Question 1

Duty of Care Advantages

Answer 1

Robinson - cases with clear duty dont need the Caparo’s test
if there is no clear duty the test helps apply the duty
establishing a duty avoids a flood of cases - help limit liability
established categories of duty provide legal certainty

Question 2

Duty of Care Disadvantages

Answer 2

fair, just and reasonable is subjective = inconsistency depending on judge’s perspective
Caparo’s test is not easily accessed, so public may not know if they are owed a duty
When duty is not established, the V may be left uncompensated (Bourhill V Young)
Proximity is not defined = uncertainty

Question 3

Breach of Duty Advantages

Answer 3

high standard from Nettleship V Western ensures V Is compensated
risk factors account for diff possibilities, standard can be adjusted accordingly
obj test, D is judged against the standard of a reasonable person = consistent
obj ‘reasonable person’ gives clear benchmark for assessing
flexibility to consider circumstances (higher standard for professionals)

Question 4

Breach of Duty Disadvantages

Answer 4

learner standard (Nettleship V Western) is unfair to trainee
Lack of blanket standard of care = unclear law, inconsistencies
obj test can be unfair as relevant characteristics aren’t considered
hard to apply standard consistently in all scenarios and cultures

Question 5

Damaged Caused Advantages

Answer 5

but for test gives clear starting point for establishing FC
intervening acts limit liability
test of remoteness (reasonable foreseeability) limits liability

Question 6

Damaged Caused Disadvantages

Answer 6

diff to apply but for test in complex scenarios with multiple causes (Fairchild V Funeral Services
LC can lead to unfair results (The Wagon Mound)
Challenges in dealing with cases of unclear causation
new intervening acts can leave the V uncompensated