NEGLIGENCE-A CRITICAL OVERVIEW
In order to highlight the general problems with the law of negligence, we need to look first at what the
aims of this area of the law are, so as to provide a gauge by which its success can be measured. The law
of negligence has several aims, not all of which are necessarily consistent with each other:
● to compensate victims of harm caused by others;
● to mark the fault of those who cause harm;
● to deter carelessness;
● to spread the financial costs of harm caused by carelessness( corrective justice);
● to do all these things quickly and fairly
1) Compensating victims of harm
Considering that compensation is generally seen to be its most important function, the law of negligence
is remarkably inefficient in this area and, in practice, only a small proportion of victims of harm get
compensation through it.
The first reason for this is that, if we take a wide view of harm, many people are caused harm by
circumstances in which nobody can be blamed, for example, those with genetic illnesses or those who
suffer damage of any kind in accidents that are genuinely nobody’s fault. Society as a whole spends a lot
of money on negligence cases, yet the result is that a few people get large amounts of money in
damages, while many other people whose needs are the same, but result from different causes, do not.
The question is therefore whether the system we currently have gives good value for our money. If it is
impossible to prove fault on the defendant’s part, claimants have to look at other sources of
compensation, such as welfare benefits, personal insurance policies or compensation schemes.
Added to those people who cannot prove fault in anyone are those who possibly could, but whom the
law of negligence will not compensate. Examples include those victims of psychiatric injury and
economic loss who fall outside the rules on compensating these types of damage and those whose
damage is the result of carelessness by categories of defendant to whom the law gives special
protection in certain circumstances, such as the police and local authorities.
Even among those who have suffered damage in circumstances where someone else might be liable,
only a small proportion take legal action. Research published by Warwick University in 2007 found that
claims were in fact going down, not up, and, despite the availability of ‘no win, no fee’ services, it is still
the case that the vast majority of people injured through negligence never make a claim, let alone win
one.
Among those who do bring cases, the chances of success are sometimes slim. This is particularly the
case in medical negligence, where the Bolam ruling has traditionally meant that if doctors stick together,
it is extremely difficult to prove them negligent, and the judgement in Bolitho still leaves plenty of room
to keep the old standard in all but exceptional cases. Yet there seems no compelling reason why medical
negligence should be treated so differently from other areas of negligence, and English law is alone
among the major common law jurisdictions in giving doctors this privileged status.
In practice, the vast majority of negligence cases are settled without going to court – sometimes early
on, but often almost literally at the door of the court. This saves a lot of money for the side that would
In order to highlight the general problems with the law of negligence, we need to look first at what the
aims of this area of the law are, so as to provide a gauge by which its success can be measured. The law
of negligence has several aims, not all of which are necessarily consistent with each other:
● to compensate victims of harm caused by others;
● to mark the fault of those who cause harm;
● to deter carelessness;
● to spread the financial costs of harm caused by carelessness( corrective justice);
● to do all these things quickly and fairly
1) Compensating victims of harm
Considering that compensation is generally seen to be its most important function, the law of negligence
is remarkably inefficient in this area and, in practice, only a small proportion of victims of harm get
compensation through it.
The first reason for this is that, if we take a wide view of harm, many people are caused harm by
circumstances in which nobody can be blamed, for example, those with genetic illnesses or those who
suffer damage of any kind in accidents that are genuinely nobody’s fault. Society as a whole spends a lot
of money on negligence cases, yet the result is that a few people get large amounts of money in
damages, while many other people whose needs are the same, but result from different causes, do not.
The question is therefore whether the system we currently have gives good value for our money. If it is
impossible to prove fault on the defendant’s part, claimants have to look at other sources of
compensation, such as welfare benefits, personal insurance policies or compensation schemes.
Added to those people who cannot prove fault in anyone are those who possibly could, but whom the
law of negligence will not compensate. Examples include those victims of psychiatric injury and
economic loss who fall outside the rules on compensating these types of damage and those whose
damage is the result of carelessness by categories of defendant to whom the law gives special
protection in certain circumstances, such as the police and local authorities.
Even among those who have suffered damage in circumstances where someone else might be liable,
only a small proportion take legal action. Research published by Warwick University in 2007 found that
claims were in fact going down, not up, and, despite the availability of ‘no win, no fee’ services, it is still
the case that the vast majority of people injured through negligence never make a claim, let alone win
one.
Among those who do bring cases, the chances of success are sometimes slim. This is particularly the
case in medical negligence, where the Bolam ruling has traditionally meant that if doctors stick together,
it is extremely difficult to prove them negligent, and the judgement in Bolitho still leaves plenty of room
to keep the old standard in all but exceptional cases. Yet there seems no compelling reason why medical
negligence should be treated so differently from other areas of negligence, and English law is alone
among the major common law jurisdictions in giving doctors this privileged status.
In practice, the vast majority of negligence cases are settled without going to court – sometimes early
on, but often almost literally at the door of the court. This saves a lot of money for the side that would
