ABSTRACT

The judge, hearing a claim for common law negligence, listens to the evidence presented by the parties and decides whether the defendant has broken the duty of care owed by the defendant to the claimant. As was pointed out by Lord Somervell in Qualcast v Haynes (1959)1 the findings of fact, which judges make when evaluating evidence, and the rulings which they make as to whether these facts show there has been a lack of reasonable care, do not create precedents. Now that it is clear that in any case the duty is simply to take reasonable care, the determination of whether the claimant is entitled to compensation is normally more concerned with determining the facts than with clarifying the law. Consequently, since 1970, relatively few personal injury cases have reached the law reports. Also, perhaps fewer claims are litigated and more are settled out of court by insurers.