Negligence Evaluation

Question 1

DOC Evaluation

Answer 1

1. Donoghue/Robinson Rules too vague
   - Anns v Merton London Borough Council (2-Part Test) -> Caparo v Dickman -> being able to skip it (Robinson)
   - vague and in the hands of unelected judges
2. Difficulty in determining proximity
   - Bourhill v Young (X), too far and didn’t see enough of aftermath
   - Alcock v Chief Constable of West Yorkshire (Y), saw something shocking happen to a friend on TV
3. Protection of Emergency Services
   - allowing people to make serious errors without liability
   - Osman v UK/Z v UK: conflicts with Human Rights Law and confusing because
   ??No blanket DOC now??
4. Cost of bringing a claim
   - courts accept can put someone out of business (Smith v Eric Bush)

Question 2

Breach Evaluation

Answer 2

1. Unfair burden on C
   - fault-based element and hard to prove
   - although it is objective test, hard for judges to remain completely impartial
2. Special protection of doctors
   - ‘known and recognised procedure’ but can be accepted with a minority of doctors
   - Montgomery: doctors must tell about side effects of procedures
3. Unfair on learners
   - hard for leaners to be at same level as experienced
4. Cost
   - get doctors opinions is expensive

Question 3

Damage Evaluation

Answer 3

1. Multiple Ds and Causation
   - Fairchild v Glenhaven, D must ‘materially increased the risk’ of harm
   - Chester v Asfhar the judge satisfied ‘but for’ test on policy grounds
2. Inconsistency with NIAs
   - Spencer v Wincanton Holding, C needed to wear crutches and got injured when not using them - D liable
   - Carlosgie Steamship v Norweigan Government, a collision between two ships caused damage on a later voyage
3. Problems with remoteness
   - Hughes v Lord Advocate, dropped gas lamp down manhole because fire damage was foreseeable, explosion was too
   - Doughty v Turner Asbestos, asbestos into molten liquid, steam damage from explosion was too remote
4. Cost
   - cost yeah lol

Question 4

Negligence Overall

Answer 4

1. Difficulty in determining proximity
2. Unfair on learners
3. Issues with muiltiple Ds and causation
4. Cost

Question 5

Negligence should be fault-based

Answer 5

1. Stop floodgates being opened
   - stops compensation culture, courts would be overhwelmed
2. Deterrence
   - knowing you may be found liable forces to people to be more careful
3. Accountability
   - people cause damage/harm should be accountable
4. Protection of emergency services
   - police would be forced into a defensive strategy if they get blamed for everything

Question 6

Negligence should not be fault-based

Answer 6

1. Objective standard not fair
   - learners aren’t compared to someone of their same limited skill level
2. Unfair expectations
   - the reluctance to impose liability on some groups may mean they are less careful
3. No fault or cannot be proven
   - if nobody is at fault or it cannot be proven that other party is at fault so wronged people get no compensation