Dissertation Creation - The UK's original provider of custom dissertations and dissertation help...

Free Dissertations - Law Dissertations

While It May Be To The Benefit Of The Public For The Claimant To Have ...

While it may be to the benefit of the public for the claimant to have suffered it cannot be said to be in the interest of the claimant. Lunney also expresses this concern (page 147) and suggests that a remedy may be for compensation to be paid irrespective of fault. While this would avoid the technical issue it would still lead to payments being made which would inevitably have repercussions including, potentially, higher insurance premiums or higher taxes depending on whether the defendant is a private or public entity. Such a remedy would also lead to more subtle consequences including, in cases involving doctors, defensive medicine and it is possible to envisage a fire brigade, taking the case of Watt described above, spending more time making sure that every safety check list is complied with that they spend putting out fires in emergencies. Such a situation cannot be desirable.
Realistically there is no simple answer to this concern. What can be said is that it is a factor that is out of place as it does not go strictly to the question of whether or not the defendant breached their duties. It could be argued that the question of public policy should be an entirely separate and distinct issue that could be considered after the other hurdles have been cleared.
The final consideration must be the perspective of the analysis. The evaluation of this must be reasonably positive as it is certainly logical for a defendant to be judged according to the standards of the reasonable persona and it is also logical that the court consider what it would have been reasonable for the defendant to do by ways of preventative cure at the time of the incident rather than at the time of the hearing. The one criticism that can be levelled is at the decision of Nettleship [1984]. It is certainly arguable that someone who is incapable of reaching the standards of care that are required should not be held liable when those standards are not reached.
The difficulty though arises when an alternative is sought because apart from exempting the incompetent from liability, a policy that could certainly be attacked as being unjust, there does not appear to be another way of dealing with this part of breach of duty. As such, as unsatisfactory as it may appear, the current tests must be considered to be appropriate in the circumstances. If there is a scope for remedy then it should be through other avenues, for example a policy decision to require an individual to attain that standard before being permitted to engage in that activity. Indeed in the case of Nettleship it could be argued that to allow a learner to drive without expert supervision is an activity that should be limited by law. This is not the function though of the courts in evaluating duty of care situations.

Please note: The above dissertation snippet was written by a student and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.