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Negligence Evaluation essay
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Tort law EvaluationNegligence is a fault-based system where C must prove D is at fault in order to win compensation as
the burden of proof is on C. This can lead to issues such as cost, delay, need for lawyers and
confrontation between parties.
Negligence was defined in the case of Blyth v Birmingham Waterworks as failing to do something
which the reasonable person would do or doing something which the reasonable person would not
do. According to this, negligence can come from an act or an omission. The case of Donoghue v
Stevenson established the neighbour principle and the modern definition of the law on negligence. A
‘neighbour’ is a person who is owed a duty of care by the defendant. The neighbour principle was
then replaced by the 3 parts Caparo Test in the case of Caparo v Dickman. The first part of the
Caparo test is to check if the damage or harm was reasonably foreseeable (Kent v Griffiths). The
second part is to determine if the relationship between the defendant and the claimant is sufficiently
proximate (Mcloughlin v O’Brien). The last part of the Caparo Test is to decide if it’s fair to impose a
duty of care on the defendant (Hill v West Yorkshire).
Once it has been shown that a duty of care is owed, the claimant must prove that the duty of care
has been broken. The standard duty is objective to that of the reasonable person. The objective test
allows the defendant to be judged and see if they acted like the ordinary reasonable man. In
Nettleship v Weston the learner was tried as a competent driver not a learner. Professionals are
judged by the standard of their profession, using the Bolam test (Bolam v Friern Bernet Hospital
Management Committee). The Bolan test is used by identifying if the defendants conduct fell below
the ordinary competent member of that professional and if there is a substantial body of opinion to
support the course of action taken by the defendant (Montgomery v Lanarkshire health board).
Lastly children are tried as the age they committed the act. Mullins v Richards.
Once the claimant has proved that the duty of care has been broken the court considers whether
the risk of harm is known. If the risk wasn’t known at the time, then there is no breach (Roe v
Minister of health). The court will also consider if the claimant has any special characteristics, the
claimant being deaf or blind. (Paris v Stepney Borough Council). The last principle is that the higher
the risk of injury the greater precautions need to be taken to prevent the injury taking place (Bolton
v Stone).
Providing liability is costly. Evidence is needed to prove how the injury or damage occurred therefore
eyewitnesses or payed experts for example medical examiners to evaluate the injuries or
professionals to evaluate if the property is damaged, can be very expensive. On top of this, legal fees
can be very expensive too. Costs are often deterrent to C making a claim and this can prevent them
from getting justice. A reform proposal to deal with the high costs of bringing a case to court was the
state-run benefit scheme which pays out compensation to victims without having to prove how the
accident happened. This scheme would be funded from Tax. This scheme will speed up claims
proposed to insurance companies allowing damages to be rewarded quickly helping with high costs
and delays. A fast-compensating scheme can also help with the unnecessary confrontation between
parties. New Zealand already have a similar scheme imposed called the no fault scheme and Canada
already has the state-run benefit scheme to compensate any claimants.
Another critical point is delay. D may have insurance where in most cases this is compulsory
(buildings and car insurance). If D is insured a report is submitted to the insurance c0mpany who will
often the over the case. The insurance company will thoroughly investigate the claims and once they
have determined the claim is genuine, they will pay our compensation. The investigation process can
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