Breach of duty evaluations

• Unfair Burden on the Claimant

  fault based tort, restricts liability

  fallen below standard of care expected

  extra burden, objective test

  can lead to impossible levels of care necessary to avoid liability
• Unfairness for Standard of Care Required by Learners

  tested on standards of reasonable driver even though she hadn't passed her test yet (Nettleship v Weston)

  objective, unfairly punish learners and young inexperienced individuals

  C.A - higher standards, makes them be more careful
• Special Protection of Doctors and Emergency Services

  medical profession may be seen to close ranks (protect others)

  accepts minority, 'known and accepted procedure' (Bolam v Frierm Hospital Management)

  courts reluctant to find liability so allows minimal use (Montgomery)

  risk factors favour D, make C harder to prove, did bare minimum (Latimer)
• Cost of Bringing and Losing a Case

  cost can be substantial, no legal aid (Smith v Eric Bush)

  discriminate low financial people, put off C from pursuing case

  lack access to justice, C have burden of proof - medical reports