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Evaluation in Negligence - the fault based system - Coggle Diagram
Evaluation in Negligence - the fault based system
Cost
Proving fault can be quite costly and difficult to prove - less access to justice is everyone is not able to afford it
This also applies when providing evidence for the accident as if there could be expert witnesses involved which require to be paid
Furthermore for people who are not as financially stable they may suffer from all these costs as there is always a possibility that they may not win and lose money.
These act as a deterrent to the claimant to make a claim as not only can it be difficult to prove but it is also difficult to obtain enough money to use.
However these high costs can deter fraud claims as since there still is a probability and a lot of evidence involved to prove fault it can be risky for them to try and gain false compensation.
Delay
In most motor vehicles it is compulsory to have an insurance and that can prove it be benefit for the claimant as they have access to justice since they will definitely receive compensation for their injuries or damage
However in order to give the right people their access to justice the insurance companies have to investigate each case thoroughly as they overall receive a lot of claims however a lot of them also include fraud claims.
Due to the extensive investigation that they go through it may take a very long time for them to be ready to deal with the claim and it can then result in the claimant taking back their claim since it causes a lot of financial and emotional strain - there are certain time limits on personal injury cases (3 years) and sixty year for property damage therefore if the delay could take up to a year and the case is take to court the claimant may lose hope of their cases being settled within the right time.Which then also means that the claimant loses their access to justice
Need for lawyers
If a case is going to court the claimant may require to have a lawyer to help them with this case.
The lawyer will usually be taking care of the evidence and making.The lawyer has a lot of responsibility they have to gather evidence which can make sure that the defendant can be convinced by their claim.this will usually first be negotiated and if not then go to court.
If the issues cannot be settled in a negotiation it had to go to court where there are several more documents which need to be prepared and witnesses.these can all add up to the cost the claimant had to bear and delay and these processes can take a while.Again the issue come down to the fairness of the law as these cost seem to favor the rich compared people who live on minimum wages will not be able to afford it as they don’t have enough funds
However a positive for those whole case the fund is that their case has a 75% or higher success rate the lawyers will be able to make a ‘no win no fee’ agreement where the claimant does not have to pay any costs if they win the case.However the down side of this is that if the case’s success rate is not up to 75% then the lawyer may even drop the case.
However the 'no win no fee' arrangement will require the claimant to have a 'before the event' insurance policy or 'after the event' policy where the insurance company covers the cost.in order for the claim to proceed the claimant has to pay for the premium which is more costs for the claimant.
Confrontation
in order to prove fault there will be confrontation between two parties and their representative and the chances of a negotiated settlement is less likely.
if the negotiated settlement is done then the case will go to court which means that there will be a lot of costs and this links into the point of lawyers as court is very complicated and there often is need for professional help.
Judicial Law Making
Tort Law is mainly developed from judicial precedent. Donoghue v Stevenson was a prime example where this was the first case to create area of law known as negligence.
However judges are unelected and their roles include to enforced and interpret the law so the decision made in Donoghue v Stevenson could be seen as undemocratic. Now this case bind everybody.
However judges have a great deal of experience with dealing with a lot of difference case and developing precedent.Plus the changes that a judge make are very small whereas Parliament make vast changes to the whole of law
Policy
sometimes judges may have to make law for a policy reason which goes against the established precedent as it could produce an unjust or unfair decision
Case:
White v Jones
- claimant expected to get money from the will but was unable to as it was negligently drafted by a solicitor.Court held that there was a duty of care between the claimant and solicitor but according to the normal rules he couldn't sue as it was too remote
.Lord Gaff stated: the courts job was to ' fashion a remedy to fill a lacuna in the a law and so prevent the injustice which would otherwise occur on the facts of cases such as the present.'
This is beneficial for the claimant at the present time however this seem to be a problem for future cases as it can create confusion and interstice for those who were decided on the 'old' principle.
Certainty is vital in dispute case for anyone and therefore clarity and predictability as vitally important in the rule of law.But if the judges are developing these policy principles it can cause confusion and mislead lawyers when advising their clients.
Changing the law
Judges in appeal courts may make a new principle because what they previously recognised as a well established principle was wrong
Case:
Bolam and the Montgomery Lankshire Health Board
- before there would be a breach of duty if the doctor failed to warn the claimant of the 'inherent risks' of their 'proposed treatment.This was determined by a test where the 'omission was accepted as proper by responsible body of the medical profession.'This principle was used for over half a century and the Supreme Court said that this was unsatisfactory in the case of Montgomery v Lankshire hospital health board.
The normal method now is that a doctor is under the 'duty to take reasonable care to ensure that the patient is aware of any material risks involved in the recommended treatment and any reasonable alternative or variant treatments.'This provides justice however it again creates confusion and lack of clarity in the law.Also it creates unjust as those who was decided on the old principle could have had more fairer outcome.