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`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

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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.

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