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Negligence formula is unfair to claimants

`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’.


Tort law is the law of personal injury. It most usually involves one person violating the rights of another in circumstances that give rise to legal liability. It should be noted that injury could include financial loss, personal injury or physical damage to property. Tort Law is sectioned into multiple areas.

Negligence in torts is when a person fails to take reasonable care and, as a result, injures another person.

The negligence formula is said to be unfair to the claimants as it places too many obstacles in the way of obtaining compensation for personal injuries. But as Lord Macmillan’s assertion that “the categories of negligence are never closed” suggests how courts possess the power to expand the area of liability by bringing in new duty situations as a result of new set of facts coming is every day. It is clearly seen that the tort of negligence is a relatively recent phenomenon, which has come to become the most dynamic and rapidly changing areas of liability in modern law.

Negligence as a term it is difficult to be defined in simple terms, so it can be said that the ‘neighbour’ principle for duty of care, remains within a wider meaning one of the most important elements of negligence. This principle was defined by Lord Atkins in Donoghue v. Stevenson case.

However to successfully pursue a claim in the Tort of negligence there are three elements that need to be fulfilled. These are a legal duty of care, a breach of that duty and damage suffered as a result of that breach. Although the most important of all the possible claims in question must firstly establish a duty of care.

Thus, for a duty of care to be owed, comes a three questions test which was recently established in Caparo v Dickman [1990] and implies that the courts ask, “Was the damage to the claimant reasonably foreseeable?”, “Was the relationship between the claimant and the defendant sufficiently proximate?” and “Is it reasonable and fair to impose a duty of care on the defendant?”. Thus the above questions must be answered positively, in order to establish a duty of care. So having this test it is interesting to examine how the law of negligence was evolved. Many important cases of negligence took place but the most important one which can be said to be the origin of the tort is Donoghue v Stevenson. The Donoghue v Stevenson case was about a lady who had bought a bottle of ginger beer for her friend. After drinking most of the drink, the friend realised that there was a decomposed snail in the bottle. As a result the appellant alleged to have suffered shock and severe gastroenteritis. At the time, she could not sue the manufacturer for breach of contract because she did not enter into an agreement with the manufacturer as it was her friend that entered into a contract by buying the bottle of ginger beer. The principle of tort did not allow consumers to sue manufacturers for injuries. Despite this, Donoghue argued that manufacturers should be liable to consumers for their faulty products.

Thus she sought to recover damages and brought proceedings against the manufacturer in negligence claiming that he had failed in his duty to provide an efficient system of inspection of the bottles. Lord Atkins, in his accenting judgement, claimed that such liability to be an important problem because of it is relating with the public health. So as he established his famous ‘neighbour principle’, as it is known, stating the factors upon which the liability of negligence can be established. This is to say that you must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbours (described as persons who are closely and directly affected by ones acts). Lord Macmillan held that a manufacturer knows that the consumer will consume his goods. In such cases where there is no change to the product from the manufacturer to the consumer, the manufacturer does come under a duty of care towards the final consumers. Thus Lord Atkins allowed claimants to obtain the compensation they deserve by his “neighbour” principle.

Prior that principle the courts had been reluctant to provide remedy for claims where there was no contract between the claimant and the defendant in respect for policy consideration. Decided by the majority of the House of Lords, Donoghue v. Stevenson (1932) is regarded as the classic case in this regard, in part because it laid down the foundational principle for the modern law of negligence. However, this new category of negligence can be better understood by looking at the previous cases that presided Donoghue v. Stevenson case where in similar factual circumstances negligence was not recognised and familiarized that obtaining compensation for personal injuries was very difficult.

In Bates v. Batey &Co. Ltd., the defendants, ginger beer manufacturers, were held not liable to a consumer (who had purchased from a retailer one of their bottles) for injury caused by the defect in the bottle as it could have been avoided by exercise of reasonable care.

Likewise, in Winterbottom v. Wright, A contracted with B to provide a mail-coach to convey the mailbags along a certain line of road. Others also contracted to horse the coach along the same line and his co-contractors hired C to drive the coach. Held was that C could not maintain an action against A, for an injury sustained by him while driving the coach, by its breaking down from latent defects in its construction as there was no direct contract between A and C. This was mainly due to the well-established principle that no one other than a party to a contract can complain of a breach of that contract.

Following cases such as Anns v. Merton and Home Office v. Dorset Yacht Co. Ltd. can be cited to better explain the duty of care principle. In the latter case, the Home Office said that the neighbour principle was applicable in all cases where there was no justification or valid explanation for its exclusion. The HoLs held the Home Office, through its careless officers, did owe a duty of care-foreseeable harm. Where as in Anns case, although overruled on its facts set out to establish the principle of proximity, consideration that might reduce liability or scope of the duty or class of persons whom it is owed or the damages etc. The case that overruled Anns, Caparo v. Dickman in it, criticized the expansion of liability. It used an incremental approach based on foreseeability, ‘proximity’ and ‘fairness’- (which can be shown where there is foreseeability of damage, that the claimant and defendant were in a relationship of proximity and that it would be fair, just and reasonable to impose a duty where the first two conditions are satisfied).

Hence, today, there is the equally well-established doctrine that negligence apart from contract gives a right of action to the party injured by that negligence. Hence Donoghue v. Stevenson confirmed negligence as a separate tort in its own right, and claim for negligence can exist whether or not there is a contract between the manufacturer and the injured party. Hence the ratio decendi was formulated, where a claim for negligence will succeed if the claimant can prove the defendant owes a duty of care to the claimant, that there should be a breach of that duty by the defendant; and resulting damage should not be too remote. That is to say there should be casual link between the defendant and the injury.

So basically the effects of Donoghue v. Stevenson have been extremely wide. Since its establishment as a separate tort, it has not only increased available remedies but also taken over a lot of other fields where it would not have applied before.

However claimants may succeed to prove that there is a duty of care owed. But as long as the tort of negligence have many obstacles it is shown that many claims failed because it not possible to prove the breach of that duty. The major criticism of the existing negligence-based system is that the process of filing a claim is costly, very slow and highly unpredictable, because of much confusion over what counts as negligence and what doesn’t.

There is a serious mismatch of injuries to claims which indicates that the system is ineffective.

The costs of litigation and uncertainty over the outcome will deter many people with small but potentially meritous claims. The likelihood of getting a positive result is often influenced by the quality of the litigation and this is influenced by money and time.

These inconsistencies undermine the whole system and lead to even more litigation as there are no clear boundaries and little regularity of decisions.

The long time period of many claims under the current system can have negative effects in 3 ways. Firstly, the obvious monetary costs incurred and the delaying of compensation payments, secondly the inconvenience, mental pain and injustice suffered by the claimant and thirdly the encouragement of patient malingering and an unwillingness to ‘get well’ until the case is closed.

The final issue over the current system is focused on the supposed key advantage of it, the deterrence to physicians from committing future negligence caused by the monetary loss and damage to reputation caused by a successful claim. It is claimed that physicians may be encouraged to practice ‘defensive medicine’ and go way beyond the socially optimal level of precaution, usually in attempt to prevent the damage to their reputation, as this cannot be covered by insurance.

‘No-fault’ schemes such as the ones already in operation in Sweden, Norway, Finland and New Zealand differ from the UK’s current system in a number of ways. The fundamental difference is that a claimant does not have to prove negligence on behalf of the medical practitioner, merely that their injury was caused by the medical treatment that they received. These schemes are not a ‘strict liability’ form of tort law, they are truly ‘no-fault’.

Under a no-fault scheme ‘normal risks’ of medical practices are excluded from claims, as are pre-existing injuries. Severity of injury serves as the only determinant for size of compensation and most proposals specify compensation to be paid over a period of time rather than in a lump sum. Compensation can be claimed without litigation and it is from the medical institution (e.g. hospital), rather than the individual physician. Deterrence measures, which would also be directed at institutions rather than individuals, would be separated from the compensation procedure in order to speed up both processes and maintain a no-fault regime.

No Litigation means lower overhead costs, a quicker process and a smaller percentage of payouts being swallowed up by administrative expenses.

It is clear that both schemes have potential advantages and disadvantages, and that without experience it is hard to know exactly what the impact of introducing a no-fault policy into the UK would be. The major advantage of the current negligence system is clearly deterrence, assuming of course that defensive medicine is not a major problem. The no-fault system has serious benefits with regard to quick, easy compensation and access to justice to a greater number. However, there are concerns that ‘true ‘ justice is compromised and that overall costs will rise due to the huge increase in claims.

These kind of schemes may provide the long term solution for the UK, although it is not clear whether any scheme can overcome the difficulties of the imperfect information available to patients, courts and physicians which is the essence of the current problems.

Under no-fault more people would receive compensation payments and the mismatch between injuries and claims would be reduced; “Because, a) coverage extends to medical injuries caused by medical acts or omissions that are not demonstrably negligent, and b) the cost of bringing a claim in time, dollars and adversarial tension is reduced.”

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