Compensation Act 2006 Essay -- Negligence

Negligence as a tort is defined as a breach of a legal duty to take care which results in damage to the claimant. It has been established that in order to raise liability and succeed in negligence claim, the claimant must show that the defendant owes him a duty of care, that this duty has been breached, and that he suffered damage or loss which is within the scope of the duty. However, the question of whether a breach of a duty of care has occurred, involves two elements: how much care is required to be taken (in other words; the standard of care) and whether that care has been taken. It is worth mentioning that the standard of care in negligence is objective , as held in Nettleship v Watson , in which the conduct of the defendant was examined. The situation, however, was not that clear. Under Caparo test , the courts will take into account in determining duty of care; foreseeability of harm, proximity, and whether imposing a duty would be fair, just, and reasonable. Relatively, it can be said that s.1 of the Compensation Acts 2006, revolves around similar principles of those mentioned in Caparo test. In fact, the courts are invited under section 1 (but not obliged) to take into account the impact of decisions they make on standard of care. Furthermore, in deciding whether the defendant have taken necessary steps to meet the standard of care, the courts are invited to examine whether those steps would prevent desirable activities from taking place, and discourage people from undertaking functions in connection with the activity. The question arises here, however, on whether Judges had such discretion before the Act while deciding on standard of care. The answer lies in the explanatory notes of the Act, which declare... ...ckman [1990] 2 AC Miller v. Jackson [1977] QB 966, CA Robinson v Post Office [1974] 1 WLR 1176 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty, The Wagon Mound (No 2 ) [1967] 1 AC 617 Nettleship v Weston [1971] 2 QB McHale v Watson [1966] CLR 199 Bolton v. Stone [1951] AC 850, HL Donoghue v Stevenson [1932] AC 562 Website End compensation culture – Blair accessed 7th January 2011 Compensation culture accessed 7th January 2011 (Claire Mckenney), ‘Questioning the claims culture’ (2004) accessed 7th January 2011 Compensation Act 2006 Explanatory Notes accessed 7th January 2011