Negligence - breach of duty evaluation:

Cards (8)

  • One of the major arguments to show the benefits of breach of duty is with regarding to the risk factors that are considered during breach of duty. An advantages of this is that it allow a rise and fall in the standard of care owed. This was shown in Paris V Stepney Borough council, where the special characteristics of the claimant meant they were particularly vulnerable, they were owed a higher duty of care for their injuries. This stops the risk of floodgates, if too high standard if care is owed then many more claims would succeed and courts could not deal with important cases.
  • However one of the disadvantages is that in Bolton, even though the defendant took reasonable precaution, the risk was low as it resulted in injury. They deserved compensation as the defendant was at fault, yet the claimant received. This means that they are not achieving the main aim of tort which is to compensate the injured claimant. 
  • Another argument to show the benefit of breach of duty is with regarding to the Bolam test. An advantage of this is that in the Montgomery case they changed the rules and created a fairer operation, it changed the Bolam tests rules in consent and meant patients had to be told of all risks and had the power to make decisions and they could change their minds, this gives a more fair and just result.
  • However one of the disadvantages of the Bolam test is that when looking at what standard to judge a person by, for example a professional, the Bolam test was first used. The Bolam test can be seen as subjective, defendants could bond together at the expense of the claimant and protect their profession. This means that the defendant would get away with it and the claimant is left out of pocket and feeling cheated by the unfairness.
  • The third argument with regards to breach of duty is regarding risks that benefit the society. An advantage of this is fair that there should be no liability for the defendant, if a risk has to be taken when the benefit to society is greater than the potential harm. This was shown in both Watt V Hertfordshire county council and Day V High performance sports (2003), where it was morally right that the defendant had to act quickly to save the claimant from further injury. 
  • However one of the disadvantages of this is that there is a few claimants that have not been compensated for the injuries caused, which is the main aim of tort. Thus leading to unfair outcomes. 
  • The final argument with regards to breach of duty is regarding learner professionals. An disadvantage of learners is that they are judged by the standard of a competent driver as seen in Nettleship V Weston. There is little room for a learner to make an error which they are more likely to do as they do not have the experience of a competent driver, this leaves little room for them to actually learn. insurance companies will cover any damage but this is a long term effect as insurance goes up.
  • However one of the benefits of this is that the system operates fairly for the claimant, this is because if the learner has caused an accident and they have damage or injury then they should be granted compensation. This makes the standard more just and in line with the main aim of tort which is to compensate the injured.