{"id":298,"date":"2019-08-05T09:30:32","date_gmt":"2019-08-05T09:30:32","guid":{"rendered":""},"modified":"2021-02-17T13:49:08","modified_gmt":"2021-02-17T13:49:08","slug":"tort-law-human-rights-act-3726","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/tort-law\/tort-law-human-rights-act-3726.php","title":{"rendered":"Tort Law and the Human Rights Act"},"content":{"rendered":"

In the light of an introduction of a cause of action against a public authority for breach of ECHR (European Convention on Human Rights) rights under section 7 of the Human Rights Act 1998 (HRA), the English courts have been unreceptive to arguments1 necessitating the development of \u2018pre \u2013 existing principles\u20192 of public authority liability in tort law. Instead, they have \u2018regarded the HRA as the appropriate vehicle for seeking redress against public authorities\u20193 and have refused to modify tortious principles to \u2018accommodate human rights law\u20194. The current view, therefore, is that claims in tort law<\/a> and for breach of human rights under the ECHR, may arise on the same facts, but, following the introduction of the HRA,5 have \u2018separate spheres of operation\u20196.<\/p>\n

The HRA, which incorporates the ECHR into UK domestic law,7 enables individuals to obtain compensation from public authorities for violation of their convention rights.8 The Act makes it unlawful for a public authority to act in a way which is incompatible with a person\u2019s Convention right9 and provides that such conduct may be the subject of proceedings before a court.10 Under the Act, the court has the power to grant whatever remedy within its powers it considers \u2018just and appropriate\u2019, including the award of damages where this is necessary to afford \u2018just satisfaction\u2019 to the victim.11<\/p>\n

The courts have a tendency to reject the reflection of Strasbourg jurisprudence in common law claims of negligence, \u2018although the position is not entirely clear\u201912 on this point. The Court of Appeal in the case of D v East Berkshire Community NHS Trust<\/em>13 had allowed children to bring negligence claims against health authorities in relation to child abuse, since such claims would frequently also amount to a violation of Article 3 or Article 8 of the Convention.14 By entailing a finding that the policy \u2013 based reasoning used in X v Bedfordshire CC<\/em>15 to deny a duty of care was incompatible with the HRA16 the court had aligned liability in negligence with human rights. However, in Lawrence v Pembrokeshire CC<\/em>17 the Court of Appeal declined to apply the same approach to a claim brought by parents against a local authority and explicitly rejected the argument that the policy reasoning in D<\/em>18 as it applies to parents had been overtaken by the HRA and the various article 8 cases.19<\/p>\n

In Smith<\/em>, 20 where the claimant had been seriously assaulted by his former lover after reporting escalating threats to the police, the House of Lords took the view, that it was unnecessary to extend the tort of negligence to accommodate a claim that could be brought against the police under section 7 of the HRA for a breach of ECHR rights. 21 Lord Hope said that \u2018the common law\u201922 \u2018with its own system of limitation periods and remedies, should be allowed to stand on its own two feet side by side with the alternative remedy\u2019.23 The section 7 claim made it redundant for \u2018the common law to provide a parallel cause of action.\u201924 Lord Scott expressed his agreement with this observation in Jain v Trent Strategic HA<\/em>25 when holding that the defendant health authority owed no duty of care to the owners of a nursing home who suffered economic loss after a magistrate acceded to the defendant\u2019s application for the cancellation of the home\u2019s registration.26 His Lordship took the view that the claimants would have been entitled to compensation under the HRA had it been in force at the relevant time and this therefore militated against the development of negligence law to provide a remedy.27 Desmond<\/em>28 is another example of a case where the availability of an alternative claim under the HRA for breach of Article 829 led to the denial of a duty at common law. The reluctance of the courts to modify tort principles is further supported by the case of Rabone<\/em>30 where instead of extending the law of negligence to cover claims for bereavement, the Supreme Court found it suitable to award \u2018damages for distress under the HRA\u2019.31<\/p>\n

Thus, while D <\/em>appears to give the notion that liability in negligence might converge with that of human rights, recent case laws show that the decision in D <\/em>\u2018 does not represent an emerging trend\u201932 towards the \u2018convergence of negligence liability and human rights\u2019.33 D is a lone outcrop of common law where the existence of a remedy under the HRA militated in favour of a duty of care at common law.34 The usual approach has been to negate any development of the law when a claim can be pursued under the HRA. It can, therefore, be argued that the current position is to consider negligence liability and human rights liability as entities that are separate from each other.<\/p>\n

The possibility of the HRA claim has also served to bolster a restrictive approach towards the development of rules35 <\/em>in nuisance and has negated the recognition of a tort of invasion of privacy. Wainwright36 <\/em>was a case in which a mother and son had been searched in a manner that constituted a violation of the prison\u2019s internal rules and were not protected by statutory authority.37 In explicitly rejecting the submission that the English law should recognise a general cause of action for invasion of privacy following the commencement of the HRA,38 Lord Hoffmann took the view that the coming into force of the HRA \u201c[weakened] the argument for saying that a general tort of invasion of privacy was needed to fill gaps in existing remedies\u201d.39 Sections 6 and 7 of the Act were considered to be substantial gap fillers in themselves.40 If a person\u2019s rights under Article 8 had been infringed by a public authority, he would have a statutory remedy.41 In Dobson v Thames Water Utilities<\/em>42 the courts considered that a breach of Article 8 might require the payment of just satisfaction to non-owning occupiers of property whose enjoyment was adversely affected by the activities of the defendant.43 This was, however, to be achieved through an award of damages under the HRA, rather than an extension of the tort of nuisance at common law.44<\/p>\n

The practice of the courts to separate \u2018public authority tort liability\u201945 from human rights liability is desirable for two main reasons \u2013 first, tort law and human rights law differ in their purposes and second, \u2018the human rights route is better suited\u201946 for dealing with claims relating to breach of Convention rights . The next part of the essay will assess these in more detail.<\/p>\n

First Reason: <\/em>The aim of tort law is to provide corrective justice while that of human rights law is to provide distributive justice. Corrective justice is directed at rectifying an injustice between the doer and the sufferer of harm.47 Distributive justice, in contrast, is concerned with the proper distribution of benefits and burdens that are held in common by all who belong to a community.48 Principles of causation and the distinction between acts and omissions form an indispensable part of tort law, for \u2018they connect the claimant and the defendant to each other in a manner that simultaneously distinguishes the link between them from their relationships with the rest of society\u2019.49 Both these features, however, run counter to the pursuit of distributive justice.50 \u201cFrom the point of view of distributive justice it does not matter whether A has too much as a result of taking more than his share or as a result of failing to give away an extra portion freely given to him by another: if he has too much, he is duty bound to give up any excess however that came into being. Nor is distributive justice concerned with whether any diminution in A\u2019s holdings was caused by B; if A has less than he should have and B more than she should have, then B\u2019s excess should go to A even if it was A\u2019s generosity or own foolishness in dealings with C that brought about the imbalance.\u201d51 What matters for distributive justice is the distribution and neither the distinction between acts and omissions nor the principle of causation pertain to that.52 Both would frustrate the pursuit of distributive justice.53 Since public authority liability turns on distributive justice54, the inconsistency between the purposes served by tort law and human rights law renders the law of tort incapable of accommodating an HRA claim under it.<\/p>\n

Second Reason: <\/em>While the human rights approach uses a requirement of proportionality between the aim pursued by an interference with a Convention right and the extent of the interference (Proportionality test), the law of tort considers how the defendant acted, asking itself whether the defendant took reasonable care or used his land reasonably (Reasonableness test)55. The tort law test is suitable for questions of corrective justice, but unsuitable for those of distributive justice.56 Asking whether someone took reasonable care in view of the reasonable foreseeability that harm might ensue if she failed to do so, does not answer the question whether a responsibility should be imposed on the public authorities that exist to serve the interests of others.57 The appropriate question is whether the person did justice to the interests of all those over whom he has authority\u2013did he achieve the right balance between their interests?58 Put in another way, does his decision meet the proportionality test?59 The human rights approach is therefore, in contrast with the tort test, designed precisely to deal with claims under the HRA.60 Furthermore, the remedial structure of the human rights route is better attuned to the exigencies of HRA claims than tort law.61 Rectification of a distributive injustice requires the injustice be remedied in a manner that produces a socially just result, a consideration that is anathema to corrective justice, with its focus on the bilateral relationship between the parties.62 For this reason the remedy and the harm, which are closely correlated in the remedying of corrective injustices, may well come apart when a distributive injustice is rectified.63 The pursuit of distributive justice may not need\u2013may indeed countermand\u2013the payment of damages.64 Damages should hence not be the primary remedy for breaches of duties that emanate from the state\u2019s special role in society.65 This is indeed the position under the HRA, which, in requiring a court to be satisfied that an \u201caward is necessary to afford just satisfaction to the person in whose favour it is made\u201d66, has been held to grant the court a discretion to award a remedy other than damages and to award a sum differing from what would be payable as tort damages.67<\/p>\n

The separation of the two systems further leaves domestic tort law policy intact, thus allowing the HRA to develop its own line of precedents.68In cases such as Jain <\/em>the HRA action was indeed used to justify not changing tort law in the claimant\u2019s favour.69 It also serves to maintain the existence of policy bars to liability seen in the cases of Hill<\/em>70 <\/em>and D<\/em>.71 As per Giliker \u2018the divorcing of tort claims from those arising under the HRA has preserved the traditional notion of tort law\u201972 (emphasis being on the wrongful conduct of the defendant and not the violation of the claimant\u2019s right)73. Nolan has gone on to argue that the alignment of tort law with the HRA would lead to incoherence and has thus vouched for their separation.74<\/p>\n

In conclusion, it can therefore be said that the judicial resistance to the expansion of tortious principles in the light of the HRA has been striking in the field of negligence. The courts have been reluctant to absorb Strasbourg jurisprudence into domestic tort law. The tort of nuisance has also seen the curtailed willingness of the courts to modify existing tortious principles, though in a much subtle manner in comparison to negligence. By maintaining a distinct separation between tortious and human rights liability, the courts have retained the integrity of both the systems.<\/p>\n

BIBLIOGRAPHY <\/strong><\/p>\n

BOOKS <\/strong><\/p>\n