Negligence

• Negative for the claimant

  • Claimant has the burden of proof and therefore effectively has to do all the work
  • Unfair as defendant was arguably in the wrong
  • also with cost of court, lawyers and waiting times
• However

  • If the claimant has a good case this shouldnt be an issue and it prevents unreasonable claims
  • Also possibility to settle out of court using ADR
  • If claimant wins they also get their money back from the defendant
• Negative for both possibly

  • Negligence is a common law tort so its rules may change unexpectedly with case law.
  • A duty can also be ruled out on policy grounds which can be difficult to predict and appear rather random
• However

  • Most of the rules of negligence are well established in precedent and many have been in place since the 1950's
• Negative for claimant

  • Sometimes hard to establish a duty of care if it is not obvious
  • test for foreseeability can lead to inconsistencies as it is a little vague
• Negative for both

  • because based on common law, there can be legal uncertainty as cases are sometimes be overruled or principles modified.
• However,

  • occaisional changes in the law are advantageous as they show how the courts are prepared to respond when the law does need modification
• Negative for the Defendant

  • standard of care is objective so the standard of care does not generally depend on the characteristics of the defendant
  • inexperience will not absolve the defendant
  • eggshell skull principle