Negligence Evaluation PDF

Negligence Evaluation Secrets of the exam 12 mark questions – Explain why your point is an advantage and disadvantage – Give a counter argument Explain / Describe questions – Issues from previous exams – Not knowing the law, Misread questions, Not meeting assessment objectives Advise questions –...

Negligence Evaluation Secrets of the exam 12 mark questions – Explain why your point is an advantage and disadvantage – Give a counter argument Explain / Describe questions – Issues from previous exams – Not knowing the law, Misread questions, Not meeting assessment objectives Advise questions – Wrong law used, lack of detail, ‘sort of’ responses, lack of cases/ statutes What can we do In scenario Q’s, read the Q before the scenario. This will help you know what to look for going in. Quote the scenario, there can be no more obvious way to show your application to the scenario than to take quotes from it. Use one Authority for every legal point made. This can be a case, statute or legal report (Wolff reform) For the evaluation questions, focus on the question and don’t just rehearse points. Make each point evaluative and not a statement of fact. Fell free to shorten long case names as so they are still recognisable. Underline cases (the head examiner asked for this) Revise what we know on negligence Explore the evaluation for negligence Apply our knowledge to a negligence evaluation question What do we know about negligence? Write down bullet points of facts that would be featured in a typical negligence case. Include cases in this. Duty of Care - Positives The ‘neighbour principle’ established in Donoghue v Stevenson (1932) allowed a duty of care to be established between persons so closely and directly affected by your acts or omissions. This meant that anyone who was directly affected could potentially have a claim. It was a landmark decision in the case to establish a duty between a manufacturer and the ultimate consumer of their product (where there was no contract), and is seen as the correct decision. There are justifications for making policy decisions and therefore, restricting liability. It was thought that if it were allowed for the family of the victim of a crime to claim against the police, such actions would mean that the police would not be able to do their job properly for fear of litigation (Hill v Chief Constable West Yorkshire Police (1988)). But there are concerns this may give the police too much leeway in negligence. The courts will not apply blanket immunity to all police who are sued for negligence. Since Brooks v Commissioner of the Police for the Metropolis (2005), each new case will be decided on its facts. Failure to prevent a crime will not establish a duty of care unless the police have ‘assumed a responsibility’ towards that person. When the court decided that barristers could not be sued for negligence in Rondel v. Worsley (1969), it was done to prevent every person who lost their case from blaming their barrister. The case of Hall v Simons (2000) overruled this immunity. Duty of Care - Negatives The ‘neighbour principle’ turned out to be too wide as it established a duty of care in almost every situation. The House of Lord’s response to this was to limit duty according to what was in the interest of the public by making policy decisions. The courts sought to reduce this over different cases before deciding on Caparo v Dickman (1990) and the 3 part test. This use of policy decisions was criticised as it gave judges a great deal of power to decide who should and should not owe a duty of care. The immunity given to police (in Hill v Chief Constable West Yorkshire Police (1988)) was criticised, as were previous cases where judges decided that barristers should not owe a duty of care (Rondel v Worsley (1969) Duty of care - Counterpoint The issue of judges making policy decisions for reason such as preventing the ‘floodgates’ from opening can be both justified and criticised. The issue is whether it should be up to the judges to make these rules. Breach of Duty - Positives The decision in Nettleship v Weston (1971) required the defendant to reach the standard of an ordinary reasonable driver even though she had not passed her driving test. The advantage of this general standard is that if the courts took into account the personal factors relating to the defendant, the test would become subjective and much harder to prove. The courts have made it very difficult to prove negligence in medical cases and have been criticised for protecting doctors from liability. In medical cases, the requirement of proving fault means that the claimant must prove that a doctor is negligent. Medical cases in particular are very difficult to prove as the medical profession may be seen to close ranks. If the doctor can show that another doctor may have done what they did, then the courts are reluctant to find that the doctor was at fault. This happened in Bolam v Friern Hospital Management Committee (1957). In 1978 the Pearson Committee suggested that there should be a no-fault system of negligence for personal injury claims. This could also be used in motor accidents where everyone is compensated by their insurance rather than having to prove who was at fault. Counterpoint – The concern with introducing such a scheme is the possibility that insurance premiums would rise and lawyers would have a lot less work. In 2002 and 2003 the Government made plans for legislation which would mean that fault does not need to be proved in medical cases involving babies born with brain damage. It is extremely difficult to decide if the doctor caused the damage during the birth or it was by natural causes. The NHS Redress Scheme would offer up to £30,000 compensation in negligence cases without the need to go to court and prove fault. There would also be £100,000 per year available for babies severely brain-damaged at birth. This scheme would reduce the number of cases of medical negligence going to court and therefore, the amount of money that the NHS spends on legal fees. Counter – This compensation could potentially be lower than what the claimants would receive in court at a trial. Damage Evaluation The final requirement of causation and that the type of damage is foreseeable further limits liability. The courts are extremely keen that they can draw the line somewhere in a case to prevent a defendant being liable for everything that could possibly happen. The ‘egg-shell skull rule’ in causation means that the claimant is fully compensated and the concept of res ipsa locquitur means that a claim can still be made even when it is difficult to prove who was to blame. These two principles make it easier for the claimant to succeed in their claim yet the requirement that the type of damage is foreseeable from the case of Wagon Mound (1961) restrict what can be claimed for. Exam Q Discuss to an extent, the arguments for and against the requirement to prove fault in negligence.