negligence evaluation

Question 1

what are the 4 evaluation points for duty of care

Answer 1

Initial Duty of Care rule too wide
Judicial Discretion (choice)
Immunity for some Public Bodies
Recent changes create more confusion

Question 2

Initial Duty of Care rule too wide dev (case included)

Answer 2

The ‘neighbor principle’ established in Donoghue v Stevenson (1932) allowed a duty of care to be established between persons so closely and directly affected by your acts or omissions. This meant that anyone who was directly affected could potentially have a claim, however this turned out to be too wide as it established a duty of care in almost every situation, which was unfair on defendants although allowed more options for claimants to get compensation. 

Question 3

Initial Duty of Care rule too wide extra (case included)

Answer 3

The House of Lord’s response- limit duty according to what was in the interest of the public by making policy decisions (predetermined courses of action). The case of Anns v Merton London Borough Council (1978) created a two-stage test. There needed to be proximity between the claimant and defendant (similar to the ‘neighbor principle’) then the judge should consider if there are any policy reasons why a duty of care should not be owed. This rule has then been added to using the three requirements in the Caparo test, which added the question whether damage was reasonably foreseeable narrowed the law even further than Anns because it added a third requirement. This helped to restrict the application of duty of care which arguably made the fairness of the law more balanced.

Question 4

judicial choice dev

Answer 4

criticised as it gave judges a lot of power to decide who should and should not owe a duty of care, which is undemocratic as judges are not elected. This exists through the ‘policy’ arguments in the duty of care tests, where judges are able to decide no duty exists if they feel there is a policy reason why it shouldn’t, as well as in deciding if there is proximity, or if harm is reasonably foreseeable.

For example, the third branch of the Caparo test determines that judges can decide if it is ‘fair, just and reasonable’ to impose a duty, considering the public benefit of providing compensation to claimants against any risk of opening the floodgates to numerous cases which could overrun the courts. This decision is in the hands of the judges, with limited guidance or restrictions on what individual judges should consider here, meaning two different judges could make opposing decisions. 

Question 5

judicial choice extra

Answer 5

The issue of judges making policy decisions for reason such as preventing the ‘floodgates’ from opening can be both justified and criticized. The issue is whether it should be up to the judges to make these rules.  

Question 6

Immunity for some Public Bodies dev (case)

Answer 6

Cases which appear to give immunity to certain groups can be criticized as they block claimants from being able to get justice in these situations (e.g. police in Hill v Chief Constable West Yorkshire Police (1988)

when the court decided that barristers could not be sued for negligence in Rondel v. Worsley (1969), it was done to prevent every person who lost their case from blaming their barrister, and similarly when the police could not be sued for failing to solve a crime quickly enough in Hill. 

Question 7

immunity to public bodies extra (case)

Answer 7

However, the case of Capital Industries 2019 has clarified it doesn’t blanket immunity to such public bodies – instead, stating that where they have done a positive act-made the situation worse- they can indeed be sued. The Hall v Simmons 2000 case also removed the immunity all together for barristers. This has allows the law to become fairer to claimants.  

Question 8

Recent changes create more confusion dev

Answer 8

The introduction of the ‘novel’ case test in Robinson may have been done to attempt to create a shortcut for judges in cases where there was a pre-existing duty of care (where D has responsibility to avoid causing harm to another person e.g doctors), however it has been criticized as it adds confusion to the duty of care tests.

Prior to Robinson, judges in every case used the three part Caparo test, applying the same rules in every case, therefore ensuring consistency. Whilst this could be criticized by some as being a lengthy process – especially in cases where a duty was clear – judges were able to simply use existing precedents to demonstrate why each element of the test had been passed. 

Question 9

Recent changes create more confusion extra

Answer 9

Since Robinson changed the test, it has led to much confusion regarding the process for cases which are ‘novel’, as there has not been clarity on a consistent test for judges to use, instead using reasoning by analogy alongside elements of the previous Caparo rule. This seems to have added an unnecessary lack of clarity and means judges do not have clear guidelines.  

Question 10

what are the breach of duty evaluation points

Answer 10

Negligence is a Fault Based Tort
Objective tests are used
Breach is hard to prove in medical cases
Consideration of Context is used

Question 11

Negligence is a Fault Based Tort dev

Answer 11

have to show that they have not met the standard of the reasonable man making it harder for a claimant to prove than if negligence were a strict liability tort (liable for damages or losses, without having to prove carelessness or mistake)

This is because the claimant is required to show that the defendant has acted in a way which the reasonable person would not (or failed to do something the reasonable person would do), and if they cannot prove this they miss out on compensation. Some argue this should not be necessary as most defendants will have insurance to be able to pay compensation, and that a strict liability approach in negligence would be fairer and less of a burden for claimants, therefore being more in line with the aims of tort law.

Question 12

Negligence is a Fault Based Tort extra (risk factor case)

Answer 12

However, the current fault based system makes the law fairer for the defendant, because as long as they uphold the objective standard of care (reasonable person given similar situation) they will not have to pay out for compensation, as was seen in the case of Latimer.

Question 13

Objective tests are used dev (class of persons case)

Answer 13

Breach of duty is objective, which means the claimant only has to prove that the defendant has not met the standard of the reasonable person, and does not requires the claimant to prove that the defendant knew about this specifically. This makes it more likely that a claimant will get compensation.

The decision in Nettleship v Weston (1971) required the defendant to reach the standard of an ordinary reasonable driver even though she had not passed her driving test. The advantage of this general standard is that if the courts took into account the personal factors relating to the defendant, the test would become subjective and much harder to prove, reducing the chance of the claimant winning the case.

Question 14

Objective tests are used extra (class of persons case)

Answer 14

it could be argued that a subjective test would be fairer on the defendant, as is used in criminal law, however as there is no risk to the defendant’s liberty, and objective test helps to balance the claimant’s rights vs. the defendant’s risk. In addition, there are some allowances for the defendant’s characteristics to be taken into account – for example, if they are a child (Mullin). 

Question 15

Breach is hard to prove in medical cases (class of persons case) dev

Answer 15

The courts have made it very difficult to prove negligence in medical cases and have been criticised for protecting doctors from liability, as the Bolam test asks whether a body of opinion within the profession would agree with the defendant’s actions.

In medical cases, the doctor and their employer may be very keen to prove that they were not at fault in order to avoid payouts, and if the doctor can show that another doctor may have done what they did, then the courts are reluctant to find that the doctor was at fault. This happened in Bolam v Friern Hospital Management Committee (1957). Such cases rest on the testimony of expert witnesses who say that they would or would not have done the same, and have lead to the medical profession appearing to support each other’s actions. This makes it extremely difficult to win a case of medical negligence.

Question 16

breach is hard to prove in medical cases extra

Answer 16

In 2002 and 2003 the Government made plans for legislation which would mean that fault does not need to be proved in medical cases involving babies born with brain damage. It is extremely difficult to decide if the doctor caused the damage during the birth or it was by natural causes. The NHS Redress Scheme would offer up to £30,000 compensation in negligence cases without the need to go to court and prove fault. There would also be £100,000 per year available for babies severely brain-damaged at birth. This scheme would reduce the number of cases of medical negligence going to court and therefore, the amount of money that the NHS spends on legal fees.

Question 17

Consideration of Context is used dev (think risk factor case)

Answer 17

As part of the risk factors, the context of the situation in which the negligence occurs allows for some variation of the standard of care that is required, which appears to be fair to the defendant whilst still allowing for a claimant to argue their case.

For example, the risk factors of ‘risk’ and ‘emergency situations’ allow for defendants to argue that a lower standard of care is required when the risk of the end result happening is very low (as in Bolton v Stone) or when the defendant is dealing with a high pressure emergency situation (Day v HPS). This is fairer on the defendant, whilst still imposing a standard of care required to be given to the claimant, even if it is of a lower level. 

Question 18

Consideration of Context is used extra (think risk factor cases)

Answer 18

In addition, this standard of care can be raised in order to provide protection for the claimant, for example in high risk situation (Haley) or where the claimant has certain special characteristics which might make them more vulnerable (Paris). These variations give claimants additional protection, whilst balancing well with the rights of the defendant.  

Question 19

causation for damage evaluation points

Answer 19

But for test is used consistently
Legal causation is fair for defendants
Remoteness rules prevent unforeseen liability
Inconsistencies in proving causation

Question 20

But for test is used consistently dev

Answer 20

The test for factual causation is the same test applied for all defendants, which makes the law fair as it ensures consistency.

For example, the simple rule asking whether ‘but for’ the actions of the defendant, would the end result still have happened, is a simple and easy to apply factual test that is objective and which will easily determine if the defendant is the root cause of the damage. This also provides certainty in the law, and fairness.

Question 21

But for test is used consistently extra

Answer 21

However, the but for test can be complicated where there are multiple causes and multiple possible defendants, as it can be hard to determine which is the dominant cause. If a claimant is in such a situation, there is also a likelihood that the legal causation test may not be passed and the claimant’s case may fail.

Question 22

Legal causation is fair for defendants dev (think claimant for case)

Answer 22

The rules of legal causation allow for defendant’s to have a safety net and to avoid liability where there has been a novus actus interveniens, or new intervening act.

This provides fairness for the defendant, as even if they have breached their duty of care, if the cause of the damage is through some other factor they can rightly avoid liability. The inclusion of acts of the claimant, acts of nature, and acts of third parties allows for a broad range of intervening acts that will absolve the defendant of liability, including cases where defendants are only held accountable for partial injuries (e.g. McKew v Holland, where D was only liable for the initial injuries and not for further damage caused by the claimant).

Question 23

Legal causation is fair for defendants extra

Answer 23

However, these rules can lead to the claimant missing out on compensation even where a duty has been breached and the defendant’s breach had a small role in causing the injury, and can leave the claimant without a remedy, which is against the main aims of tort law. Seeing as the defendant is also likely to have insurance to cover the cost, it seems unfair that the claimant should miss out.

Question 24

Remoteness rules prevent unforeseen liability dev (think tests)

Answer 24

 The rules on remoteness ensure that a defendant is only liable for damage which could have been reasonably foreseen, which is fair and ensures claimants are not able to make unjustifiable claims- harm needs to be reasonably foreseeable For example, in the Wagon Mound, the extensive damage to the harbour from the oil spill was not foreseeable, which was fair in the circumstances.

However, the decision whether something is foreseeable is decided by judges, and therefore there can be inconsistency in the interpretation of remoteness depending upon the views of the judge, which may leave parties without remedies where other judges may have decided otherwise.

Question 25

Remoteness rules prevent unforeseen liability extra

Answer 25

In addition, the rules relating to only the type of harm needing to be foreseeable and not the extent of the harm can lead to further subjective interpretation by judges, which may be unfair on either of the parties dependent upon the outcome. 

Question 26

Inconsistencies in proving causation dev (think a rule and case)

Answer 26

 The final requirement of causation relating to remoteness seems inconsistent with the ‘thin skull’

Remoteness test tells us that a defendant will not be liable for the damage if the outcome was too remote, or could not be reasonably foreseen. However, the thin skull rule states that a defendant is liable for the full extent of harm if the claimant is more susceptible to more serious damage than another claimant might be. These two rules appear to contradict one another. For example, in Smith v Leech Brain it could be considered that the burnt lip causing the claimant to eventually die from cancer is not reasonably foreseeable and therefore too remote, however the thin skull rule applied to allow the claimant’s estate to win the case.

Question 27

Inconsistencies in proving causation extra

Answer 27

However, the thin skull rule is beneficial for claimants as it allows those who may be more vulnerable to serious harm as a result of D’s breach of duty to be fully compensated for their losses, despite their situation, which allows the main aims of tort law to be upheld.