• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

`The negligence formula is unfair to claimants as it places too many obstacles in the way of obtaining compensation for personal injuries. England & Wales should adopt an alternative system of redress to allow claimants to obtain the compensation they des

Extracts from this document...

Introduction

Formative Assessment 1 `The negligence formula is unfair to claimants as it places too many obstacles in the way of obtaining compensation for personal injuries. England & Wales should adopt an alternative system of redress to allow claimants to obtain the compensation they deserve'. Discuss. The law of negligence aims to hold individuals liable for the infliction of damage through want of care in order to protect others from harm arising as a result of an individual's lack of care. When an individual is found liable, the law attempts to achieve redress by compensating the claimant. In order for a claim in negligence to succeed, all of the following elements must be established: (i) A duty of care exists between the defendant and the claimant (ii) The defendant has acted in breach of that duty (iii) Damage was caused as a result of the defendant's breach (iv) The damage suffered is not too remote from the breach These elements make up what is known as the negligence formula and each must be proven by the claimant to show that the defendant was at fault. ...read more.

Middle

This can be difficult element to prove due to the fact that the courts adopt an objective standard which involves comparing the defendant to the "reasonable person". This strict standard of the "reasonable person", used most commonly for learner drivers and trainee doctors where they are judged by standards of reasonably competent doctors or drivers, can in fact benefit the claimant as it means that the defendant cannot escape liability by arguing he was not fully competent or qualified.10 However, one might argue that it is unfair to impose a standard to which it is impossible for an inexperienced defendant to reach.11 In cases involving clinical negligence, doctors may be able to escape liability if they are able to show that their actions are "in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art"12 and furthermore, the responsible body need not be large. This was criticized for overprotecting the medical profession as it allowed doctors to set their own standards for what is expected of them. The are however examples of cases where the courts have moved away from this approach, such as Hucks v Cole13 in which a doctor was found negligent for the treatment of his patient, even though he acted in accordance with a responsibly body of medical opinion. ...read more.

Conclusion

Although it has not been without faults and subject to various reforms since it's introduction, the Accident Compensation Scheme has established positive elements. The insurance system has been described as "rational and comprehensive"20 and can provide damages to the claimant in the absence of fault. It is funded by levies placed on employers and drivers. The loss of earnings that arise from an employer's negligence are able to be compensated to the victims and are determined based on an individual's working hours and earnings. There is also a lump sum available to all claimants who suffer permanent physical injury, which is capped at $17000. In comparison with the fault-based system in the UK, the no-fault alternative takes into account the needs and requirements of the claimant and is more efficient in comparison to the high litigation costs involved in proving fault. In Scotland, the Scottish Executive is currently examining the possibility of a no-fault scheme. With the present inadequacy of the current negligence system of compensating victims, and the benefits experienced in New Zealand as a result of their no-fault alternative, it seems that England and Wales may too benefit from a trial run of the no-fault scheme to provide a more effective means of allowing claimants to obtain the compensation they deserve. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Tort Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Tort Law essays

  1. A Critical Examination of the Concept of Breach of Duty of Care

    Breach of duty is not restricted to professionals or persons under written or oral contract; we all have a duty to take reasonable care for others and their property. Anyone who unreasonably runs a risk that results in harm to others or their property, breaches their duty of reasonable care.

  2. Consider the relationship between the torts of private nuisance and negligence and in doing ...

    In some situations the standard ought to be to require of the occupier what is reasonable to expect him in his individual circumstances.'16 Also using the authority of Goldman was the case of Leakey v National Trust17 where relevance was again placed on the element of fault.

  1. Duty of Care.

    Swinney v CC of Northumbria Police [1996] The plaintiff provided confidential information to the police who negligently left it in the car. Subsequently, the alleged people on whom information provided got hold of the file and harassed the informant. The informant suffered psychiatric problems.

  2. "A duty of care arises not merely when damage is reasonably foreseeable, but when ...

    have been prevented could not negative causation between the breach of duty and the loss; nor where human rights are involved, Osman v UK(2000) (ECHR) and breach of Article 6 ECHR. (c) Immunity of judges - In Sirros v Moore(1975), it was said that without judges' immunity the result would

  1. To succeed in a negligence action in tort, the claimant must prove three things

    This means that Mr and Mrs Fontes owe Mr Arantes a duty of care. If Mr and Mrs Fontes were found to be liable, Mr Arantes would be able to claim for physical damage and the damage to his watch.

  2. Negligence, causation and remoteness case. To advise the claimants, Abdul, Brian and Christie, it ...

    Chief Constable of South Yorkshire 1 and White v. Chief Constable of South Yorkshire2, will be helpful as both set out a series of fairly arbitrary tests which have been formed over the past 120 years of cases involving negligence and psychiatric Illness. Claimants generally fall into two categories; primary victims and secondary victims.

  1. How courts determine causation

    establish that they have been injured by the defendant?s act.? 12 Therefore, ?claimants could receive full compensation if it was proved that the negligent part of exposure would materially contribute to the condition.?13 ________________ 9 V Bermingham & C Brennan, Tort Law DIRECTIONS (1st edn, OUP 2008)

  2. Tort law. In order to pursue a successful claim of negligence, The claimant ...

    Although in some cases employer?s have to provide employees with competent colleagues, It states that Mr Carnell was doing is ?incompetent best?, so there for Mr Carnell lacked knowledge and skill in the job role he had been given. ?An employer owes a personal duty to his employees? according to Lord Herschell in the case Smith v baker [1891] AC.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work