The Human Rights Act 1998 and Tort Duty of Care

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“The Human Rights Act 1998 should not be seen as an opportunity to push the boundaries of the duty of care to such an extent that public bodies find it even more difficult to fulfil their functions than is already the case” Critically Discuss

The Human Rights Act 1998 came into force on the 2nd October 2000 to incorporate the Articles and Protocols from the European Convention of Human Rights (ECHR) into domestic law, before the act had been introduced, a large number of UK cases concerning infringes of the articles had to be taken to the European Court of Human Rights (ECtHR) to be remedied. The Human Rights Act (HRA) only imposes a duty on public bodies to comply with the ECHR not private individuals, s.6(1) states that it is: ‘unlawful for a public authority to act in a way which is incompatible with a convention right’. Since the introduction of this act people have become more aware of their rights and more confident in their ability to bring a claim against a public body, for this reason the caseload has multiplied. To establish a public body’s liability under Tort of negligence it must be determined that a duty of care exists between the claimant and the authority, to do this there are a number of tests. The first of these tests is the ‘neighbour principle’ laid down by Lord Atkin in Donoghue v Stevenson ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’ This, however, raised the question of what exactly was reasonable care? So a two stage test was developed in Anns v Merton Borough Council by Lord Wilberforce: “whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter” and “are any considerations which ought to be negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise” The test for duty of care in Anns is now out of date, instead replaced by a three stage test in Caparo Industries plc v Dickman, this test is: * Was it reasonably foreseeable that the defendant’s (D) lack of care would cause damage to the claimant (C)? * Was there a relationship of proximity between D and C?

* Would it be just and reasonable to impose such a duty on the D? The Caparo test is the current one used in the law of negligence when establishing a duty of care, a public authority must fulfil these requirements to be liable for negligent actions. Before the introduction of the HRA, however, the courts were reluctant to impose a liability for tort on public bodies. The Courts have tended to give public authorities (particularly the police) ‘immunity’ from these types of claims as can be seen in East Suffolk Rivers Catchment Board v Kentin which the authority took a long time fixing a wall which would prevent the sea from flooding C’s land at times of high tide, C tried to sue for losses but was unsuccessful as the House of Lords enforced the fact that a public authority can only be liable for negligently exercising a statutory power if it made matters worse. The reluctance to impose liability on public bodies seemed to stem from the belief that it may encourage them to act defensively and cautiously to prevent themselves from being liable for negligence and therefore restricting them from properly performing their duties. However, McIvor argues that ‘the threat of liability will produce exactly the opposite effect, in that it will motivate individuals to do their jobs better...
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