negligence evaluation & analysis (law)

• advantages of the law around duty

  • it is important to establish whether a duty exists so that the right cases can come before the courts
  • the law does not impose a duty on someone to prevent foreseeable harm; it only imposes a duty where someone has assumed responsibility & created a risk to others
  • Robinson has clarified when the Caparo test is needed – only in novel cases not covered by precedent
• disadvantages of the law around duty

  • the Caparo test has been criticised for its lack of clarity, making it difficult for lawyers to advise clients effectively
• advantages of the law around breach

  • it is fair that D is judged against what is common practice & the knowledge of the time
  • allowing individual characteristics of C to be considered offers more vulnerable Cs better protection
  • courts consider whether all appropriate precautions have been taken by D & balance this against the cost & effort of taking those precautions
  • it is fair that there should be no liability if a risk is taken to benefit society
• disadvantages of the law around breach

  • D is judged objectively & must reach the standard of the reasonable man – this may operate unfairly against some Ds
  • it is unfair to expect the same standard of care from learners as more experienced people performing that task
• advantages of the law around damage

  • the principles of factual causation are generally fair – the 'but for' test allows all Cs to be treated in the same way
  • D will not be liable if a new intervening act is the cause of damage
• disadvantages of the law around damages

  • the rules on remoteness of damage can be unfair to C as they may limit D's liability
  • the approach taken by the courts in determining what 'type' of damage is foreseeable may not be fair