Negligence Evaluation

Question 1

Give a way in which the duty in negligence is fair.

Answer 1

Is fair:
- Police decisions will depend on fact (Brooks v. Police Commissioner).

• Barristers will not be able to be able to be sued for not winning a case - policy decision - floodgates arguement.
• Caparo test is good for lawyers when advising clients.
• Policy decisions are in the public’s bst interest.

Question 2

Is the Caparo test fair?

Answer 2

Yes, Lawyers are able to easily advise their clients.

Question 3

How is the duty in negligence unfair?

Answer 3

Isn’t fair:
- Police enjoy immunity - e.g. Osman v. The United kingdom - ECHR said the immunity would be a breach of article 6.

• Vague vocabulary - ‘fair’ - hard for lawyers to advise clients.

Question 4

What happened in Osman v. UK?

Answer 4

The police breached Article 6 of the ECHR by failing to follow up reports of attacks.

Question 5

Give a way in which the breach element of negligence is fair.

Answer 5

Breach is fair:
- Objective test - fair judgement - easy for Lawyers to advise clients.

• Courts have ultimate say in medical negligence cases. E.g. Marriot v. West Midlands HA - court ignored expert testimony.
• Greater accountability of doctors as they are compared to their level pf profession.

Question 6

What happened in Marriot v. West Midlands HA?

Answer 6

The court ignored medical expert testimony.

Question 7

How is the breach element of negligence unfair?

Answer 7

Breach is unfair:
- Blurred lines between competent age - Mullin v. Richards - 15 year old couldn’t appreciate the risks of a ruler snapping, but in Evans v. Souls Garage, a 13 year old could appreciate the risks of petrol.

• Medical negligence is hard to prove - commonly follow the direction of medical testimony.
• A learner must reach the standard of a professional - Nettleship v. Weston - would be fairer to judge it in the same way as age.

Question 8

Is res ipsa loquitur fair?

Answer 8

Yes, it provides an avenue for indemnification when it isn’t obvious who is to blame.

Question 9

How is the damage element of negligence unfair?

Answer 9

Unfair:
- Thin skull rule asks too much of the defendant - Smith v. Leech Brain - how was the defendant suposed to be aware of C’s medical condition?