evaluation of negligence

• On your checklist, you will note how for Paper 2 there are only 3 areas on this essay question

  • Liability in negligence
  • Occupiers' liability
  • Vicarious liability
• In these essays you will be evaluating in light of some key concepts

  Justice, fault and Morality
• What is tort about?

  1. Prove Fault

  2. Provide compensation to injured victims

  3. Loss distribution

  4. Greater liability should be imposed on businesses and companies where activities cause physical injury. They are in better position to spread the costs of losses.

  5. To provide justice for an injured victim

  6. Improve standards

  7. Morally right that drivers in charge of dangerous machinery should owe a duty of care to other road users.
• Whilst this is one topic, it is a huge topic and means that the essay questions could focus on the following elements

  • Just Duty of Care
  • Just Breach of duty
  • Just damage
  • General principles of fairness
  • General principles of fault
• Duty of Care


  1. Imposition of duty

  2. Proximity test

  3. Fair, just and reasonable test
• Breach of duty of care


  1. Objective test and variations

  2. Risk factors
• Fault


  Means legal blameworthiness in causing injuries/ damages
• Why do we have a fault requirement in tort?

  Prove fault in negligence to be awarded compensation
• Problems with having to prove fault

  • Cost
  • Delay
  • Need for lawyers
  • Confrontation between parties
• A01 - recap


  Demonstrate knowledge and understanding on the law of negligence (8 marks)
• Argument for the requirement of fault is because of Floodgates


  Acts as a control to stop overwhelming increase in litigation
• White v Chief Constable of South Yorkshire (e-lawresources.co.uk)
• Argument for the requirement of fault is Deterrence


  Knowing you may be liable for large amounts of compensation/ increased insurance premiums if at fault acts to deter reckless and dangerous behaviour
• Argument for the requirement of fault is Protects professionals


  Otherwise, this would lead to defensive practise if they could not rely on the objective fault element
• Argument for the requirement of fault is Loss allocation


  Courts are unwilling to hold public bodies liable, without satisfying the fault element, due to the cost to the taxpayer
• Argument against the requirement of fault is Public policy

  In cases where D is at fault, but this is overlooked by public policy reasons leaving the injured party without justice and compensation, lacking any deterrent effect
• Argument against the requirement of fault is Objective test

  This is not always fair, especially when it fails to take into account individual circumstances
• Argument against the requirement of fault is Fault not easy to prove


  Some accidents occur where no one is at fault / proof cannot be established, leaving injured party with no compensation
• Argument against the requirement of fault is Unpredictability


  Decisions made by individual judges and case law produces contradictory and unpredictable results with unjust decisions
• Reforms - state-run benefit scheme

  Would pay out compensation in lump-sum or regular payments to all victims without the need to prove how/ why accident happened. This would be funded through general taxation / levy on motorists and employers.
• Reforms - use of ADR


  Deal with these issues by greater use of out of court resolving methods. Mediation – use this for Personal Injury claims. Use of Online Dispute Resolution. Compensation Act 2006 – introduced steps to prevent court claims and instead dealt with by ADR.