negligence evaluation Flashcards
point 1 accountability
One strength of the law on negligence is that it ensures accountability and raises standards of behaviour which benefit society and protect individuals. By establishing the elements of duty, breach and damage, the law identifies blameworthiness on the part of defendants and establishes responsibility for their conduct through the award of damages to the claimant.
dp 1
For example, in Paris v Stepney, the failure of an employer to provide protective eyewear resulted in permanent injury to the claimant. The result of holding them to account for their negligence, is that standards are raised for all employers, which protects claimants in future situations.
WDP 1
However the potential impact in raising standards and acting as a deterrent could be undermined by the fact that most defendants have insurance and are therefore insulated against claims for compensation. Their liability is limited as they only risk higher premiums rather than having to pay the entirety of damages in full.
point 2 fair
The strength of negligence being a fault based tort can be seen in the three stage test in Caparo v Dickman which limits potential liability and ensures that the scope of the law is kept within fair limits. The elements of foreseeability, proximity and fair, just and reasonable all link to fault, as they establish blameworthiness and to what extent the defendant can be responsible.
dp 2
For example, in Bourhill v Young the motorcyclist who caused the accident did not owe a duty to the claimant as she was never in any physical danger, did not witness the accident and was not connected with anyone involved in the accident. Although Young was at fault in causing the crash, he could not be responsible for injuries which were unforeseeable and where the claimant was not within the proximity of the accident, this ensured that he was only liable for damage which he was at fault for.
wdp 2
Furthermore, the law on causation and remoteness ensures that the defendant is only liable for damage which they have caused, and so are at fault for. It provides that the defendant cannot be liable for all damage which could occur, only that which is reasonably foreseeable. This demonstrates how fault is an integral aspect of negligence.
p 1 balance competing interests
A further strength of the law on negligence is that it balances competing interests between the claimant and the defendant. This is a strength as it ensures that victims are protected from the careless acts of the defendant (enabling them to claim compensation) while at the same time restricting the liability of the defendant to reasonable limits.
dp 2
Balancing can be seen in relation to claims against medical professionals who are judged according to the standards of the reasonably competent body of fellow professionals (Bolam). This is fair as it ensures they will not be liable if they acted in accordance with the minimum accepted standard.
wdp 2
However, if the minimum accepted standard is illogical, then the judge can find breach of duty even if they have not technically fallen below the objective standard (Bolitho) and this ensures that claimants are sufficiently protected and that medical professionals cannot simply argue that others would have done the same.
point 3 keeping with societal attitudes
A final strength of the law on negligence is that it has developed over time through the common law, which has ensured that the law is in keeping with societal attitudes and what is appropriate in liability
dp 3
For example, in the past liability had not been imposed on public bodies, such as the police or the ministry of defence. Following the case of Hill v CCWY it appeared that the police had immunity from suit, which did not hold them to account and so did not protect the public. In Robinson v CCWY, it was determined by the Supreme Court that the police do not have absolute immunity, and will owe a duty of care to those affected by their actions. This is in keeping with the shift in societal attitudes to hold public bodies to account.
wdp 3
Furthermore, the decision in Montgomery in relation to breach by a medical professional, demonstrates the shift in societal attitudes and the move away from a paternalistic approach to the doctor / patient relationship. This fits with the development of personal autonomy which has been demonstrated in other areas of the law.
