Negligence Evaluation

• DOC- (P) Initial Duty of Care too wide

  DEV- neighbour principle (Donoghue v Stevenson) established a broad duty of care for anyone directly affected by anothers actions. While this provided more compensation options for C it was deemed as unfair to D

  E- Additionally, in response HoL introduced policy considerations.
• DOC- (P) Judicial Discretion 


  DEV- This determines duty of care is criticised for giving judges excessive power to decide who owes this duty. Discretion is evident in policy arguments of duty of care tests where judges rule that no duty exists

  E- Additionally, third branch of Caparo test allows judge to decide if imposing duty of care is 'fair, just and reasonable'. Weighs benefits of compensating C against risk of overwhelming the courts
• DOC- (P) Immunity for some public bodies

  DEV- cases granting immunity to specific groups like barristers (Rondel v Worsley) face criticism for obstructing justice for C.

  
  

  Relates to floodgates arguments as public bodies often enjoy immunity which could lead to number of cases if DOC was recognised

  
  

  E- H/e Capital Industries 2019 clarified public bodies are not granted blanket immunity; can be used if their actions worsen a situation
• DOC- (P) Recent changes create more confusion

  DEV- intro of 'novel' case test aimed to simplify decisions in cases with a pre existing DOC but has been criticised for creating confusion in DOC assessments. Previously judges applied Caparo Test

  E- H/e Robison created uncertainty in 'novel' cases as there is no clear test for judges. Instead they rely on reasoning by analogy & elements from Caparo Rule
• BOD- Negligence is a Fault based tort

  DEV- To prove breach in negligence, C must show the D failed to meet the reasonable person standard, making it harder to establish fault than in strict liability torts. If C cant prove unreasonable conduct, they risk losing compensation

  E- H/e current fault system protects D as they aren't liable for compensation if they meet objective standard of care. Latimer
• BOD- (P) Objective tests are used 

  DEV- this requires C to show D didnt meet the reasonable person standard, regardless of D's awareness

  In Nettleship v Weston - D was held to standard of ordinary driver, even without driving license. This ensures consistent assessments are used.

  E- H/e while subjective tests seem fair to D, the objective standard balances C rights against D risks without allowances for certain. e.g. Age - Mullin
• BOD- Breach is hard to prove in medical cases 

  DEV- Proving negligence in medical cases is challenging because of Bolam Test, which often protects doctors. If doctor shows another professional might've acted similarly, courts struggle to find fault (Bolam v Friern Hospital Management Committee)

  E- H/e Bolitho v City and Hackney Health authority. HoL ruled that expert testimony alone does not absolve D. court must assess reasonable of evidence based on risks and benefits
• BOD- (P) Consideration of Context is used 

  Context of negligence allows for variation in the standard of care, balancing fairness to D while enabling C to argue their cases

  E- Additionally, standard of care can be raised to protect ind in high risk situations (Haley) or when C has special characteristics making them more vulnerable (Paris)
• COD- (P) But for test is used consistently 

  DEV- test for factual causation is applied consistently to all D, ensuring fairness. The 'but for' rule offers an objective, easy to apply standard promoting certainty.

  E- H/e tests become complicated in cases with multiple defendants making it difficult to identify the main cause
• COD- (P) Legal causation is fair for defendants 

  DEV- Rules of legal causation allow D to avoid liability if a new intervening act occurs. This ensures fairness despite a breach of duty (McKew v Holland)

  E- H/e rules can prevent C from getting compensation even when duty was breached and D contributed to injury. This may leave C with no remedy which contradicts torts law aims.
• COD- (P) Remoteness rules prevent unforeseen liability 

  DEV- rules of remoteness ensure D are only liable for damage that could be reasonably foreseen. This promotes fairness and prevents unjustifiable claims. This protects D from liability for damage beyond their foresight (Wagon Mound)

  E- H/e determining foreseeability is left to judges which leads to inconsistencies in interpretations that may leave parties without remedies