Evaluation

• Does the law achieve the aims of tort:


  ·       Compensate those who have suffered harm, injury or damage to property as a result of another’s breach of duty.

  ·       Deter others from similar behaviour.

  ·       Balance the interests of the 2 parties and put the claimant in the position as if the tort had not been committed.
• Duty of Care – any issues/recent developments:

  ·       Should we have a Good Samaritan law as they do in France where the is a duty help others? Any problems with this law?

  ·       Robinson simplified how duty of care is established. This will help speed up cases and create more certainty and make the law of negligence more effective.
• ·       Robinson overruled Hill and police no longer have blanket immunity from being sued.  This should ensure greater responsibility is taken by the police in how they respond to reports of criminal behaviour.  Where it is foreseeable that harm/damage might result from their actions/omissions the claimant will be able to seek redress through the courts.  This makes it fairer on claimants.
• Contributory negligence:

  ·       Can be unfair on the claimant – Sayers.
• Breach of duty:

  ·       Is the objective reasonable person test fair on both claimant and defendant?  What about learners? (Nettleship).
• Key cases to focus on for evaluation of the risk factors:

  ·       Paris v Stepney – is this a fair decision?  Who benefits – claimant or defendant?

  ·       Bolton v Stone - is this a fair decision?  Who benefits – claimant or defendant?

  ·       Latimer – is this fair decision? How will it improve standards in relation to employer?

  ·       Watt - is this a fair decision?  Who benefits – claimant or defendant?
• Suggestions for change:

  ·       Could adopt a no-fault scheme of compensation as they have in NZ.
• Causation and remoteness:

  ·       The remoteness test (Wagon Mound) can be unfair on the claimant as it will often limit the liability of the defendant but is fair on the defendant as they are not held liable for every consequence of their negligence.

   
• • Floodgates

  proof of fault acts as a control on negligence actions which stops an overwhelming increase in litigation – Summer v Colbourne
• Compensation culture 


  argues that in a litigious society, provided you can simply find someone to blame you will have a case – proof of fault acts as a brake on this – Tomlinson v Congleton BC
• Deterrence 


  knowing you may be liable for large amounts of compensation or even increased insurance premiums if at fault and found liable deters reckless and dangerous behaviour
• Accountability 


  in terms of moral and social justice, holding those at fault accountable for the losses they cause would be widely supported
• Alternatives that disregard fault, such as strict liability, can produce harsh and unfair results
• Protecting professionals

  many professionals would be forced into defensive practice if they could not rely on an objective fault element.
• No fault or fault ‘cannot be proven’ 


  some accidents arise in circumstances where nobody is at fault or proof that the other party was at fault cannot be established – this leaves injured parties with no compensation - Bolton v Stone
• Unpredictability 


  decisions are usually made by individual judges and case law has produced some contradictory and unpredictable results with unjust and illogical distinctions. This undermines the role of both negligence and the law more widely – Hunter v Canary Wharf
• Objective standard

  an objective standard is not always fair. This is especially the case where it fails to take individual circumstances into account – e.g. learners - Nettleship v Weston
• Reform and alternatives

  State-run benefit systems such as Canada and no-fault systems such as New Zealand. Increase use of mediation to solve disputes saving parties time and money and avoids the battle in court and need to establish fault.