Law of Tort Evaluation
Public authority owing a duty of care to members of the public - Negligence - Answer-It could lead to
those services acting defensively and also to lead to resources being diverted away also.
Cost - Negligence - Answer-Evidence for breach/causation may need to be provided by experts who
need to fail, valuations obtained.
Cost may act as a deterrent to the claimant to bring an action but a conditional fee may be arranged but
this isn't always available but have out insurance.
Delay - Negligence - Answer-This is caused by the court procedure as it is time consuming to prove all 3
requirements - there can be scientific tests or medical reports to prove breach and causation.
There can be delay from insurance companies due to investigation.
Delay can act as a deterrent to a claimant who may not want to be strained emotionally or physically.
Need for lawyers - Negligence - Answer-General public often won't have knowledge of negligence. A
claimant will also need help to get evidence to convince the defendant or insurance.
This may act as a deterrent as there can be high costs.
This can be avoided as costs may be covered by a no win, no fee situation. Lawyers require the claimant
to have before the event policy in place (house insurance or car where claimant already paid) or take
out after the event insurance (insurance company covers costs).
,However, no win, no fee only offered if a claimant has a good chance of succeeding (25% chance). If
lawyers don't offer, a claimant will not be able to pursue his cass even if they are injured or have
suffered damage.
Ideas for reform - Negligence - Answer-Introduce a state run 'no fault' compensation scheme - Pays out
compensation to all victims of accidents.
Advantages -
• Means victims would not have to prove how or why the accident happened and also wouldn't have to
prove that the defendant caused their injury/damage.
• It would be much cheaper than the current system as there would be no need to pay lawyers costs
and so would be less confrontational and quicker.
• It is also proven to work in countries such as New Zealand who have a no fault accident compensation
scheme which covers all areas and to do this, the Accident Compensation Commission raises levies.
Disadvantages -
• There may be an increase in taxes as the expense has to be administered from somewhere.
More use of ADR
Advantages -
• Online dispute resolution could be used which avoids both parties having to attend court and speeds
up and simplifies the process.
Disadvantages -
• There is no guarantee that this may work and so parties still have to go to court and there still has to
be proof of causation and so most likely would not work that well.
Difficulties caused by broad duties - Duty of care - Answer-This may cause confusion as it is not fair to
say one group of people owe a duty of care to another group without specifying what duty is but with
certain groups such as the police, this can be complex especially as there are several situations where
they DO owe a duty of care and also don't owe a duty of care as the police do not owe a duty of care to
, the public in general as seen in Hill but they do owe a duty of care if they are aware of an issue or person
and do not act to resolve it as seen in MPC v Reeves.
Contrast - In many situations, there are established duty situations where the duty of care owed is clear
and known to many such as manufacturers owing a duty of care to their consumers and drivers owing a
duty of care to other road users and so it can be argued the concept of duty of care has not caused
confusion as many duties are known.
Problems of judicial discretion and risk of floodgates - Duty of care - Answer-The Caparo test allow
judges to have discretion in what they think is fair, just or reasonable which may cause confusion and
also unfairness as even if the harm is foreseeable and proximity is close, it can be decided there is no
duty of care - this causes confusion as it may lead to inconsistency in cases as each judge will think
differently and also judicial law making as effectively those who aren't elected make the final decision on
what they think is fair when it may not be - Hill.
Contrast - Although there may be problems with judicial discretion, it is used to prevent the floodgates
of litigation and also takes into consideration many policy factors such as morality, balancing interests
and protection of professionals as seen in Hill as so to decide what is best for society as if a duty of care
was owed by police to general public, it could lead to resources being diverted or them acting
defensively in fear of being sued.
It also allows for incremental development of duty situations instead of many duties in a short period.
Also, if there was no judicial discretion, the floodgates being open would lead to a strain on the courts
which would lead to a raise in taxes to cope with the amount of cases going through and on the
insurance companies as they often pay out compensation.
Has the development of the law on duty of care led to greater clarity - Duty of care - Answer-This can
cause confusion as with the switch from the neighbour test to the Caparo test has not made the law on
duty of care easier to understand but instead made the law more complicated as it is only used where
there is a new issue or duty to be considered and often the courts are reluctant to impose a duty as the
third element of the Caparo test has many policy considerations to take into account which are often go
against the law/precedent.
Public authority owing a duty of care to members of the public - Negligence - Answer-It could lead to
those services acting defensively and also to lead to resources being diverted away also.
Cost - Negligence - Answer-Evidence for breach/causation may need to be provided by experts who
need to fail, valuations obtained.
Cost may act as a deterrent to the claimant to bring an action but a conditional fee may be arranged but
this isn't always available but have out insurance.
Delay - Negligence - Answer-This is caused by the court procedure as it is time consuming to prove all 3
requirements - there can be scientific tests or medical reports to prove breach and causation.
There can be delay from insurance companies due to investigation.
Delay can act as a deterrent to a claimant who may not want to be strained emotionally or physically.
Need for lawyers - Negligence - Answer-General public often won't have knowledge of negligence. A
claimant will also need help to get evidence to convince the defendant or insurance.
This may act as a deterrent as there can be high costs.
This can be avoided as costs may be covered by a no win, no fee situation. Lawyers require the claimant
to have before the event policy in place (house insurance or car where claimant already paid) or take
out after the event insurance (insurance company covers costs).
,However, no win, no fee only offered if a claimant has a good chance of succeeding (25% chance). If
lawyers don't offer, a claimant will not be able to pursue his cass even if they are injured or have
suffered damage.
Ideas for reform - Negligence - Answer-Introduce a state run 'no fault' compensation scheme - Pays out
compensation to all victims of accidents.
Advantages -
• Means victims would not have to prove how or why the accident happened and also wouldn't have to
prove that the defendant caused their injury/damage.
• It would be much cheaper than the current system as there would be no need to pay lawyers costs
and so would be less confrontational and quicker.
• It is also proven to work in countries such as New Zealand who have a no fault accident compensation
scheme which covers all areas and to do this, the Accident Compensation Commission raises levies.
Disadvantages -
• There may be an increase in taxes as the expense has to be administered from somewhere.
More use of ADR
Advantages -
• Online dispute resolution could be used which avoids both parties having to attend court and speeds
up and simplifies the process.
Disadvantages -
• There is no guarantee that this may work and so parties still have to go to court and there still has to
be proof of causation and so most likely would not work that well.
Difficulties caused by broad duties - Duty of care - Answer-This may cause confusion as it is not fair to
say one group of people owe a duty of care to another group without specifying what duty is but with
certain groups such as the police, this can be complex especially as there are several situations where
they DO owe a duty of care and also don't owe a duty of care as the police do not owe a duty of care to
, the public in general as seen in Hill but they do owe a duty of care if they are aware of an issue or person
and do not act to resolve it as seen in MPC v Reeves.
Contrast - In many situations, there are established duty situations where the duty of care owed is clear
and known to many such as manufacturers owing a duty of care to their consumers and drivers owing a
duty of care to other road users and so it can be argued the concept of duty of care has not caused
confusion as many duties are known.
Problems of judicial discretion and risk of floodgates - Duty of care - Answer-The Caparo test allow
judges to have discretion in what they think is fair, just or reasonable which may cause confusion and
also unfairness as even if the harm is foreseeable and proximity is close, it can be decided there is no
duty of care - this causes confusion as it may lead to inconsistency in cases as each judge will think
differently and also judicial law making as effectively those who aren't elected make the final decision on
what they think is fair when it may not be - Hill.
Contrast - Although there may be problems with judicial discretion, it is used to prevent the floodgates
of litigation and also takes into consideration many policy factors such as morality, balancing interests
and protection of professionals as seen in Hill as so to decide what is best for society as if a duty of care
was owed by police to general public, it could lead to resources being diverted or them acting
defensively in fear of being sued.
It also allows for incremental development of duty situations instead of many duties in a short period.
Also, if there was no judicial discretion, the floodgates being open would lead to a strain on the courts
which would lead to a raise in taxes to cope with the amount of cases going through and on the
insurance companies as they often pay out compensation.
Has the development of the law on duty of care led to greater clarity - Duty of care - Answer-This can
cause confusion as with the switch from the neighbour test to the Caparo test has not made the law on
duty of care easier to understand but instead made the law more complicated as it is only used where
there is a new issue or duty to be considered and often the courts are reluctant to impose a duty as the
third element of the Caparo test has many policy considerations to take into account which are often go
against the law/precedent.
