Although the burden lies on the claimant to prove the existence of these principles, the law has, to some extent, reduced this obstacle by recognizing situations and relationships within which a duty of care will always exist. These include the duty by a manufacturer of goods to the customer who buys those goods, a duty of a doctor to provide reasonable for his patients and the duty of a driver to avoid causing foreseeable injuries to other drivers and pedestrians. However, the fact that a duty is thought to exist does not always guarantee that a claimant will succeed in their claim. Take the example of McFarlane v Tayside Health Board where the court held it was not fair, just and reasonable to impose a duty of care in a doctor-patient relationship.
The imposition of the requirement that it must be fair, just and reasonable to impose a duty has been seen to offer the courts a wide scope as to whether they decide for or against the existence of a duty of care, and this has resulted in the court’s negative usage where the claimant is unable to obtain compensation. One reason for this negative usage can be explained on the basis of policy grounds, whereby the courts must establish a cut off point in order to limit the range of claims that may arise. In one particular case, where, after having been checked over by the classification society, a defective ship sunk resulting in the loss of $17.6m, the courts found it was not fair, just and reasonable to make the classification society liable for all damages.
On the other hand, there is also evidence of positive usage by the courts, which works in the claimant’s favour. For instance where a duty of care, which had not previously been recognized by the law, is established, the claimant will be able to obtain compensation. In White v Jones, the House of Lords imposed a duty of care between a solicitor and the daughters of his client, for whom he was instructed to draw up a will, but failed to do so before the client’s death.
(ii) Breach of duty
Once a duty of care has been established, the claimant must then prove that the defendant breached that duty. A difficulty is establishing this most commonly arises where the claimant must prove that the defendant fell below the standard of care required of him or her. 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. However, one might argue that it is unfair to impose a standard to which it is impossible for an inexperienced defendant to reach.
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” 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 Cole 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. Additionally, in the case of Bolitho, Lord Browne-Wilkinson stated that “the courts have to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis”.
(iii) & (iv) Breach caused damage which was not too remote
The claimant must finally prove the breach caused the damage and that the damage was not too remote a consequence of the defendant’s act or omission. In order to establish causation the “but for” test will be used, as demonstrated in Barnett v Chelsea & Kensington Hospital Management Committee where the court held that the doctor’s negligence of failing to examine the men was not the cause of the patient’s death as the patient would have died anyway. The “but for” test is not always sufficient to establish causation and consequently another obstacle may arise for the claimant. Where there is more than one potential cause of the damage, the claimant must prove that the damage is attributable to the defendant’s act on a balance of probabilities. The difficulty here is how the claimant can determine the balance of probabilities. In Wilsher v Essex Area Health Authority the defendant’s negligent act of administering excessive oxygen to a premature child was just one of five possible causes of the child’s subsequent loss of sight. The claimant was unable to claim damages due to failure to demonstrate that the excess oxygen was more likely to have caused the damage than any of the other possible causes.
The obstacles present in the negligence formula can also be seen to contribute to other financial difficulties, which may prove a further difficulty in a claimant obtaining the compensation they deserve. In order to obtain the evidence for a good claim, time and money will be needed. Overall, the current system has become costly, slow and blame-orientated, consequently decreasing the focus on the main purpose of compensating the claimant.
Even though there is clear evidence of obstacles within the negligence formula, there is also evidence within common law whereby the claimant is assisted in obtaining a claim. Take the example the principle of res ipsa loquitur, which decreases the burden of proof on the claimant as once it has been accepted by the courts that the defendant was negligent as the circumstances clearly indicate such a conclusion, then the claimant may be able to succeed in their claim even if they have insufficient evidence. In the American case of Ybarra v Spangard where the claimant suffered injury as a result of the doctor’s negligence during an operation, this principle was applied as, since the claimant was unconscious during the operation, it would be unreasonable to expect him to prove that there had been a specific act of negligence. The burden of proof was therefore transferred to the defendant.
The No-Fault Alternative
In 1973, the Pearson Commission was established in an attempt to address some of the issues within the law of tort. Although the proposal for a no-fault system was not accepted, the Pearson Commission remains relevant in highlighting the unsatisfactory nature of the present law. The Pearson Commission acknowledged that fault was a difficult element to prove, describing it as a “forensic lottery”. In the report, published in 1978, the commission recommended a number of reforms, including the introduction a no-fault insurance scheme for work-related injuries and a no-fault insurance scheme for road injuries. Lord Wilberforce stated, in a case involving the death of a young boy on a bike who was hit by the defendant’s car, that this was a case “that should attract automatic compensation regardless of any question of fault”. This seems to suggest that a no-fault system, in respect of road traffic accidents, is necessary.
In order to consider the effects of a no-fault scheme, we can look at the Accident Compensation Scheme in New Zealand, which replaced the tort for personal injuries. Unlike the negligence system in the UK, claimants are able to receive compensation for “personal injury by accident” by merely establishing causation, therefore the burden to prove fault is not an obstacle for the claimant. 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” 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.
Words: 1977
Bibliography
Books and Articles
J Murphy, Street on Torts (12th edn Oxford University Press, Oxford 2007) 23-169
P Cane, Atiyah’s Accidents: Compensation and the Law (7th edn Cambridge University Press, Cambridge 2006) 175-200
P Cane & J Gardner, Obligations and Outcomes in the Law of Torts in Relating to Responsibility: Essays for Tony Honore (Hart Publishing, Oxford 2001)
R Hasson, The Pearson Report: Something for Everyone? (Cardiff University, 1979)
C Vincent, Compensation as a duty of care: the case for “no fault” (Qual Saf Health Care 2003)
R Kinder, The variable standard of care, contributory negligence and volentri (1991)
M Whincup, New Zealand’s no-fault answer 138 NJL 474 (1998)
M Whincup, Compensation for accident victims: The exemplary model of New Zealand (1994)
Cases
Snelling v Whitehead, Unreported 1975
Donoughe v Stephenson [1932] All ER Rep 1
Caparo v Dickman [1990] 2 All ER 865
Donoghue v Stevenson [1932] All ER Rep 1
Bolam v Friern Barnet Hospital Management Committee (1957) QBD
Nettleship v Weston [1971] 2 QB 691
McFarlane v Tayside Health Board [1999] 3 WLR 1301
Marc Rich & Co v Bishop Rock Marine [1995] 3 All ER 307
White v Jones [1995] 2 AC 207
Nettleship v Weston [1971] 2 QB 691
Bolam v Frien Hospital Management Committee [1957] 1 WLR 582
Hucks v Cole [1968] [1993] 4 Med LR 393
Bolitho v City and Hackney Health Authority [1998] AC 232
Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428
Wilsher v Essex Area Health Authority [1998] AC 1074
Cassidy v Ministry of Health [1951] 2 KB 343
Snelling v Whitehead, Unreported 1975.
Donoghue v Stevenson [1932] All ER Rep 1.
Bolam v Friern Barnet Hospital Management Committee (1957) QBD.
Nettleship v Weston [1971] 2 QB 691.
Marc Rich & Co v Bishop Rock Marine [1995] 3 All ER 307.
Nettleship v Weston [1971] 2 QB 691.
Kinder, The variable standard of care, contributory negligence and volentri, 1991.
Bolam v Frien Hospital Management Committee [1957] 2 All ER 118 [1957] 1 WLR 582.
[1968] [1993] 4 Med LR 393.
Bolitho v City and Hackney Health Authority [1998] AC 232.
Cassidy v Ministry of Health [1951] 2 KB 343.
(1994) 25 Cal 2d 154 P 2d 687.
Snelling v Whitehead Unreported, 1975.
Whincup, New Zealand’s no-fault answer, [1988] 138 NLJ 147.
