The Law of Tort and Negligence

With reference to this assignment, I have opted to critically analyse the case of Z v United Kingdom which I think has a significant aspect in relation to the law of tort as it concerns one of negligence and breach of duty of care by a local body. This case [2] concerns four siblings (Z, A, B and C) who were victims of recurrent and appalling abuse and neglect by their parents’ of which the local body involved were knowledgeable of, but failed to act professionally in their duty of care owed to the said applicants’. [3] The main issue argued on was to determine whether the local body involved was liable for negligence. The applicants’ claims for negligence and breach of statutory duty were ultimately dismissed by the House of Lords. [4] The applicants’ then brought proceedings against the UK under the European Convention for Human Right [5] , which was found to be admissible.

In addition, this assignment will aim to explore the nature of the principles of the general public policy immunity before the Human Rights Act [1998] [6] was legislated. Therefore, it will be underpinned by pertinent cases and materials similar to that of Z v UK [7] such as Hill v Chief Constable of West Yorkshire Police [8] , and Osman v UK [9] before the case of Z v UK [10] and the effect of its decision on the negligence liability of the public bodies.

In Z v UK [11] , the House of Lords held that the local body involved did not owe the applicants’ a duty of care, thus depriving them of access to Court qualified to an exclusionary rule of immunity from liability thus

The contention of the applicants in Z v UK [12] was that the House of Lords finding that the local authority owed them no duty of care, depriving them of access to court, amounted to an exclusionary rule of immunity from liability which resulted in their claims not being decided on the facts. [13]

On successful approval of the applicants’ submission to the ECHR [14] , it was held that the UK had breached Articles 3 and 13 of the Convention, but not that of Article 6. [15] The ECHR [16] also took into consideration the duty of care owed by the local body to the applicants’ (children) under the Children Act [1989]. [17] With reference to the Convention of Protection of Human Rights and Fundamental Freedom, the ECHR also took into consideration Article 25 of the Convention [18] , which emphasises

Article 3 of the ECHR clearly emphasises:

“no one shall be subject to torture or to inhuman or degrading treatment or punishment”

Therefore, it can be argued that the local body failed in their capacity as a professional body to deliver effective and efficient care to the applicants’ who had entrusted their reliance upon the body to act appropriately.

Article 13 of the ECHR instructs:

“Everyone whose rights and freedom as set forth in the convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

Moreover, the applicants’ human rights have been in infringed in contravention of Article 13, as they were deprived access to the Court by the local body.

The courts examined the various types of tort in England. The claimants had to show a duty of care existed and this was done on tests developed in the case of Caparo v Dickman [19] and the analysis in Barret v Enfield. [20]

The threefold test was (i) Damage to the claimant was foreseeable; (ii) Appropriate relationship of proximity to the defendant and (iii) just, fair and reasonable to impose liability on the defendant. It also looked at W and others v Essex County Council [21] ; X v Bedfordshire [22] and Osman v UK. [23]

The examination of the case law made clear the casual connection between the damage alleged by the applicants and the violation of the convention. Before the case of Z v UK [24] , the courts had exhibited a willingness to invoke public policy principles of immunity in cases of negligence where the defendants are public bodies. The major reason for this practice was that the loss to the individual claimant was deemed to be outweighed by the harm to the public and the fear of defensive practices by public bodies in the face of the threat of litigation. [25] An example of this can be seen in Hill v Chief Constable of West Yorkshire. [26] Here the mother of a murder victim sued the police for failing to use reasonable care in apprehending the murderer of her daughter. Her case was held to disclose no course of action.

In 1998, the Human Rights Act was enacted. Article 6 (1) of the European Convention states that everyone should have the right to access to court. The immunity given to police was successfully challenged in the European Court in Osman v UK. [27] This, however, was not a complete victory, for it appeared that the European Court had not properly understood English Tort Law in this case. [28] It was held by the European Court that denying a duty of care on the ground of a generalised public interest amounted to a disproportionate restriction on the plaintiff’s right of access to the Courts. In the Court’s opinion, the Court of Appeal had not properly considered the scope and application of such immunity to the facts of the case by balancing out any competing public interests. [29]

In Z v UK [30] , the applicants lost the argument on Article 6 [31] , but were successful with Articles 3 and 13. [32] The court found breaches of these two Articles. The government had argued that there were a number of remedies available to the applicants, such as Criminal Inquiries Board and local government Ombudsman. The courts said the local government Ombudsman decisions were not legally enforceable and that the applicants did not have available to them the appropriate means of obtaining a determination of their allegation. It accepted the local authority had failed to protect them from inhuman and degrading treatment. Even though the courts did not find a breach of Article 6, the striking out of actions by the domestic court did not amount to a breach of the claimant’s rights to a fair and public determination of their civil rights. [33] The just, fair and reasonableness test of a duty of care was not affected by Article 6. [34]

The decision in Z v UK [35] appears to have resolved a lot of confusion around duty of care cases involving local authorities and with the enactment of Human Rights Act [36] and claimant could sue for a breach of convention rights where a court determines that no duty of care is owed.

There has now been a change in the negligence liability of public authorities and this can be seen in the example of D v Berkshire Community Health NHS Trust, [37] where duty of care to children was emphasised.