Evaluation of Negligence

• Negligence is a fault based system. The claimant has to prove that the defendant is at fault and they fell below the standard of care.
• it's necessary to obtain evidence, negotiate settlement and prepare cases for court.
• There can be a "no win, no fee" arrangement if a solicitor thinks that there is a 75%+ chance of winning.
• The cost of a solicitor can be high and can easily cost tens of thousands of pounds, these costs can put off claimants leaving people without access to justice.
• Legal aid is also basically non-existent in civil law
• There can also be a delay where insurance companies are involved. Insurance companies also tend to be suspicious so they can thoroughly investigate each claim which can take years.
• These years of investigation can be stressful for claimants and make them discontinue the claim.
• Judicial law making is mainly created by precedent and it's undemocratic and typically lacking technical experience.
• There are also instances of law being changed over night with no wider consultation.

  R v Bolam: "a doctor's omission to warn a patient of inherent risk of proposed treatment constituted a breach of duty of care that was normally to be determined by the application of test".
• The third part of the Caparo v Dickman test protects public authorities but its questioned about if this provides justice for claimants.
• Inconsistent cases have created a lack of clarity, certainty, and predictability.

  White v Jones
• A state run benefit scheme for all accident victims without the need to prove fault or blame.

  • No need for insurance companies to be involved
  • No need for lawyers
  • Less confrontational
  • Compensation would be paid to all who were injured.
• An easier reform would make greater use of the ADR.
• The Compensation Act 2006 introduced steps to try and encourage ADR but by 2012 the Ministry of Justice were unable to say whether there had been any impact.
• A recent proposal being considered by the Government is to raise the lower limit for PI cases to £5,000 with the aim of reducing whiplash claims.