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Published: Fri, 02 Feb 2018
European convention of human rights
To what extent has the Human Rights Act 1998 and the European Convention of Human Rights 1950 affected the liability of public authorities in the Law of Negligence and the remedies available to those affected by the acts and omissions of such authorities.
Historically, the European Convention of Human Rights 1950 has brought Human Rights Act 1998 in United Kingdom whereby there is no need to travel to European Court of Human Rights because, the domestic Courts has conferred Human Rights Act 1998 in Section 6 (1). And that it is unlawful for public authority to act incompatible with a Convention right particularly Courts and Tribunal in Section 6 (3). So, the domestic Court must comply with the decision of European Court in which, there is enough evidence to argue that the domestic Court has implemented human rights issues when they are dealing with Tort liabilities, as in Reynolds v Times Newspapers Ltd  4 All ER 609 , as regards to defamation and freedom of expression under Article 10. However, this essay will explain how the public authority is held liable in tort as a result of their actions, in which they are entitled to pay for compensation to the victim.
First and foremost, the European Convention has greater impact in Article 6. In which it concerns with fair trial in Osman v UK (1998) European Court of Human Rights held that the decision of Court of Appeal was in breach of Article 6 because it stuck out the plaintiff’s claim against the police a blanket immunity against negligence claims where the police have failed to prevent a third party injuring the claimant. In the case of Barrett v London Borough of English (1999) as there is difficulty to understand the decision in Osman v UK, in Article 6 is basically concerns with right to fair hearing, while the duty of care in negligence is focusing in the aspect of substantive right, as to whether individual is allowed to bring tort claims in such circumstances. However, the lordship in case of Barrett has argued that it is not fair to strike out the claim of individual, which involves allegation tort of negligence against local authority. So the facts has been made as to child brought up in authority, in which is consider to be unjust and unreasonable, but they would not impose duty of care without clarifying the proof, as decided in the Case of Osman v UK.
The European Court of Human Rights has recognised that there was misinterpret of the duty of care in tort of negligence, and the procedural rules that allows individual to bring forward claims to the Court. So this may be declared to have no reasonable cause of action, as in Z v UK (2001). Therefore, the Judicial Court has complied with the distinction of the procedural and substantive as decided in the Case of Barrett.
However, the relationship between the Law of Tort and Human Rights principles will form the Court particularly in understanding and approach regarding to the tort rules. Because, this could bring up the propensity for claimants to rely on human rights, which is more of common law issue regarding to tort of negligence such as individual claim against public authority. So, the lawyer has been encouraging the individuals to take into account to raise argument on the human rights. Therefore, the Court should consider attempts made by individuals, as in Daniels v Walker (2000). Because, this could lead to an expansion of Common Law, as to it is adapt judicial needs that could seen changing from time to time. As in Arthur J.S.Hall & Co. v Simons (2000), House of Lords were clearly influenced by the prospect that‘Blanket immunity’ would not be consistent with Article 6 of the European Convention.
Moreover, the plaintiff has relied on the breach of Convention rights where the negligence claim has failed earlier, and then the Judicial Court may consider Common Law to balance the rights and interests of the associated parties. As in X (Minors) v Bedfordshire County Council (1995) in this House of Lords held that children who had been subjected to prolonged physical and emotional abuse by their parents had no claim in the tort of negligence against a social services authority for alleged negligence in failing to take them into local authority care.
The claimant X (Minor) has forward the matter to the European Court of Human Rights, as they refer to case of Z v UK (2001) that the Social service authority has been alleged to have infringed Article 3 of the European Convention. In which it prohibits torture, inhuman and degrading treatment. So, the European Court has demonstrated that the authority has failed to look after the children as results they were neglected and suffer the abuse.
Similarly, in M v Newham London Borough Council (1994), House of Lords held that a child who had been wrongly taken into care could not claim in negligence against the social service authority for psychiatric harm she had suffered. As well, in TP and KM v UK (2001) as the European Court of Human Rights held that the failure of the social services authority properly to involve the child’s mother in the decision-making process in M v Newham London Borough Council (1994), in this case, there was breach of Article 8 of the European Convention, right to respect for family life. Aforementioned cases both applicants have been compensated for damages caused to the infringed of their Convention rights.
Furthermore, the decision made by Court, that plaintiff’s human rights have been violated may not equal reflects liability of the defendant in Tort of negligence. Even though, this could be argued that Human Rights Act 1998 has implemented new way on how to deal with civil tort on the basis of statutory duty. In which this will demonstrate the decisive factor for violation of the Convention right, and infringe of a Common Law duty of care, as well as the rules are different from giving compensation to the victims, as in Fairgrieve (2001). Nevertheless, if the House of Lords were to rule in the case of X (Minor) v Bedfordshire County Council (1995), then they would consider duty of care in the tort of negligence. In which it will require to balance the rights and interests of the parties, which could be dissimilar, as in Marcic v Thames Water Utilities Ltd (2002).
Another, the implication of the Human Rights Act for law of tort has been involved in Convention rights. In which this has made Judicial Court to assess the policy issues. The common law is more of practical approach that could be simple to change the rules rather than Human Rights Act. In which it might challenge the public authorities’ immunities from the tort of negligence on policy grounds. Because, the Judicial Court have been associated in accepting individual claims to challenge public authorities for compensation, as in Buxton (2000).It is likely that human rights principle could be taken as part of the common law to resolve tort claims.
There is no broad view regarding to duty of care in negligence, because the tort is relevant to identify damage caused in particular circumstances such as road accidents. In which the Judicial Court has decided that duty of care owed must be taken into account to verify danger. As in Donoghue v Stevenson (1932) House of Lords held that the manufacturer of ginger beer could be liable in negligence for injury to an ultimate consumer of the product as a result of its defective condition. However, the manufacturer of the defective product could be liable in tort, because they owe duty of care to the consumers. Therefore, it has been considered for intervene of Privity of Contract fallacy involves third party in Winterbottom v Wright (1842), that illustrate there was an existing contract between manufacturer and consumer, but not to the third party injured. In which , Lord Atkin laid down neighbour principle regarding to duty of care owed as stated that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” . Aforementioned principle has been demonstrated in the test, that reasonable foresight of harm to persons whom it is foreseeable is likely to be harmed by my carelessness. Then, this has been new principle adopted in liability, which never existed in prior cases as to the damage was foreseeable.
As, in Anns v Merton London Borough Council (1978) the House of Lords has verified the two stage approach, that relates to neighbour principle. Therefore, the second stage is likely to be difficult when it considers policy issues, as in Peabody Donation Fund v Sir Lindsay Parkinson & Co. Ltd (1984) the House of Lords has argues that the danger of treating these statements as definitive. ‘A relationship of proximity in Lord Atkin’s sense must exist before any duty of care can arise, but the scope of the duty must depend on all circumstances of the case’. Therefore, the two stage tests in Anns can not be suitable in all situations, but it may cover in a duty of care. In which, the Lord Wilberforce tests stated that first test, foreseeability of the damage. And second test, the sufficient proximity of relationship between the claimant and defendant, as in Donoghue v Stevenson. This means, aforesaid requirements has to be established before impose duty of care owed by the defendant. However, the two part test in Anns has been overruled by the Murphy v Brentwood District Council (1990).
Further, the House of Lords came up with three stage tests in Caparo v Dickman (1990). Therefore, the Court has to apply these stage tests to see whether the duty of care exists. In which this will involves; firstly, it should be considered whether the consequences of the defendant’s behaviour damage/ loss was reasonably foreseeable in Clay v Crump (1963). Secondly, the Court should consider whether there is sufficient relationship of proximity between the parties for a duty to be imposed, as in Cunningham v Reading FC (1992). And thirdly, the Court should ask the question whether or not it is fair, just and reasonable in all circumstances to impose a duty of care, as in Peabody Fund v Parkinson (1984). However, this new stage tests has been denying the neighbour principle, in which it is affirmed in the House of Lords. As it is more of simple to establish duty of care in all the circumstances.
In conclusion, the European Convention has played crucial role in protecting human rights into domestic law through its Human Rights Act 1998. In which it has been adapted by the English Courts in dealing with tort of negligence. However, this form of relationship between the Law of tort and human rights may enable to shape the Judicial Court. In which this could enhance balancing of rights and interests of the parties, as well the rules of the damage awarded could be dissimilar as it depends on the Case. Moreover, where the plaintiff established that there was breach of convention rights, but the tort of negligence has failed, then Court will consider the Common Law to resolve the dispute. In addition, the decision where the claimant human rights have been infringed would not be directly liable in tort. Finally, the European Convention has made important expansion to bring human rights into domestic level, in which it has held public authorities accountable for their wrongs, which could constitute to be liable in tort. And they would be required to pay compensation to the victims.
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