The characterisation of a no-fault scheme is rooted in the principle of distributive justice, compensating victims without having to establish causation and fault. Conversely, current liability for negligence involves fault considerations based on legal theoretical concepts determined through judicial precedent, which are inherently limited within the confines of the established legal principles of duty of care, proximity and negligence. This in itself creates a tension as wider concepts of "fault" are not currently covered under the law of negligence.
[...] Other criticisms of a no-fault scheme highlight the inability to claim for pain and suffering as a weakness and that “justice” is not served due to the lack of investigation into claims[90]. Outside the medical context, Professor Fleming argues that “punishment is justified on a moral basis and . rests primarily on the idea of retribution,” which is not the purpose of no-fault compensation schemes[91]. OBSERVATIONS AND RECOMMENDATIONS Preliminary Discussion The above analysis demonstrates that there are clearly advantages and disadvantages of both regimes. [...]
[...] If this approach is to be adopted, an initial recommendation would be a detailed official review of the current legal framework for negligence with effective communication and consultation with relevant bodies such as the medical profession in addressing the realities of malpractice cases for example. Only when a detailed and effective review of the current tort of negligence is undertaken at an official level can deficiencies in the current system as well as a considered approach to implementing a workable no fault scheme be addressed in any meaningful way to reconcile the balance between corrective and distributive justice going forward. [...]
[...] Indeed, Hassan El Menyawi propounds that such an evaluation is essential to a meaningful comparison of the arguments for and against a no fault scheme in the tort of negligence: a formalist account, a theory of justification stands for the idea that law is not merely a huge collection of separate and disparate norms, but a cohesive social arrangement, which is describable in the form of one or more several moral values . We adopt this methodology and account for tort law by exploring a variety of distinct justifications[1]”. [...]
[...] Report of the Royal Commission on Compensation for Personal Injuries, CMND Ibid. Atiyah (2006),op.cit. Menyawi (2002), op.cit. Ibid. Kerry Underwood., (1998). No Win No Fee (Civil Litigation in Practice). XPL Publishing. Ibid. P. Widmer., & W.H. Van Boom., (2005). Unification of Tort Law: Fault (Principles of European Tort Law). Kluwer Law International. Ibid. Cm Atiyah., op.cit. Civil Procedure Rules 1999. [1980] AC 174. P. Widmer., & W.H. Van Boom., (2005), op.cit. Ibid. Atiyah (2006), op.cit, Judicial Studies Board., (2006). Guidelines for the Assessment of General Damages in Personal Injury Cases. [...]
[...] Whilst such an approach is justifiable in preventing floodgate claims, the concept of a socially optimum level of care above which there is no liability, again highlights the problems of enforcing the concept of fault. The term inherently fails to address the wide range of situations that will attract liability in tort and it is submitted that a detailed consideration is needed of the definition of fault in negligence which is accounts for the variances in the type of claims that fall within the parameters of negligence liability. [...]
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