Tort Law and the Human Rights Act

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 ‘pre – existing principles’2 of public authority liability in tort law. Instead, they have ‘regarded the HRA as the appropriate vehicle for seeking redress against public authorities’3 and have refused to modify tortious principles to ‘accommodate human rights law’4. The current view, therefore, is that claims in tort law and for breach of human rights under the ECHR, may arise on the same facts, but, following the introduction of the HRA,5 have ‘separate spheres of operation’6.

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’s 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 ‘just and appropriate’, including the award of damages where this is necessary to afford ‘just satisfaction’ to the victim.11

The courts have a tendency to reject the reflection of Strasbourg jurisprudence in common law claims of negligence, ‘although the position is not entirely clear’12 on this point. The Court of Appeal in the case of D v East Berkshire Community NHS Trust13 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 – based reasoning used in X v Bedfordshire CC15 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 CC17 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 D18 as it applies to parents had been overtaken by the HRA and the various article 8 cases.19

In Smith, 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 ‘the common law’22 ‘with 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’.23 The section 7 claim made it redundant for ‘the common law to provide a parallel cause of action.’24 Lord Scott expressed his agreement with this observation in Jain v Trent Strategic HA25 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’s application for the cancellation of the home’s 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 Desmond28 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 Rabone30 where instead of extending the law of negligence to cover claims for bereavement, the Supreme Court found it suitable to award ‘damages for distress under the HRA’.31

Thus, while D 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 ‘ does not represent an emerging trend’32 towards the ‘convergence of negligence liability and human rights’.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.

The possibility of the HRA claim has also served to bolster a restrictive approach towards the development of rules35 in nuisance and has negated the recognition of a tort of invasion of privacy. Wainwright36 was a case in which a mother and son had been searched in a manner that constituted a violation of the prison’s 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 “[weakened] the argument for saying that a general tort of invasion of privacy was needed to fill gaps in existing remedies”.39 Sections 6 and 7 of the Act were considered to be substantial gap fillers in themselves.40 If a person’s rights under Article 8 had been infringed by a public authority, he would have a statutory remedy.41 In Dobson v Thames Water Utilities42 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

The practice of the courts to separate ‘public authority tort liability’45 from human rights liability is desirable for two main reasons – first, tort law and human rights law differ in their purposes and second, ‘the human rights route is better suited’46 for dealing with claims relating to breach of Convention rights . The next part of the essay will assess these in more detail.

First Reason: 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 ‘they 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’.49 Both these features, however, run counter to the pursuit of distributive justice.50 “From 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’s holdings was caused by B; if A has less than he should have and B more than she should have, then B’s excess should go to A even if it was A’s generosity or own foolishness in dealings with C that brought about the imbalance.”51 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.

Second Reason: 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–did 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–may indeed countermand–the payment of damages.64 Damages should hence not be the primary remedy for breaches of duties that emanate from the state’s special role in society.65 This is indeed the position under the HRA, which, in requiring a court to be satisfied that an “award is necessary to afford just satisfaction to the person in whose favour it is made”66, 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

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 the HRA action was indeed used to justify not changing tort law in the claimant’s favour.69 It also serves to maintain the existence of policy bars to liability seen in the cases of Hill70 and D.71 As per Giliker ‘the divorcing of tort claims from those arising under the HRA has preserved the traditional notion of tort law’72 (emphasis being on the wrongful conduct of the defendant and not the violation of the claimant’s 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

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.

BIBLIOGRAPHY

BOOKS

• Oliphant K, The Liability of Public Authorities in Comparative Perspective (Intersentia, 2016
• Giliker P , T ort, 5th edn (Sweet & Maxwell, 2014)
• J Wright, Tort Law & Human Rights, 2nd edn (Oxford, Hart Publishing, 2017)
• Giliker, The Europeanisation of English Tort Law (Hart, 2014)

LEGISLATION

• The Human Rights Act 1998
• The European Convention on Human Rights

CASES

• D v East Berkshire Community NHS Trust [2005] UKHL 23
• X v Bedfordshire CC [1995] 2 A.C
• Lawrence v Pembrokeshire CC [2007] EWCA Civ 446, [2007] 1 WLR 2991
• Smith v Chief Constable of Surrey Police [2008] UKHL 50, [2009] 1 AC 225
• Jain v Trent Strategic HA [2009] UKHL 4, [2009] 1 AC 853.
• Desmond v Chief Constable of Nottinghamshire [2011] EWCA Civ 3, [2011] 1 FLR 1361
• Wainwright [2003] UKHL 53; [2003] 3 W.L.R. 1137
• Dobson v Thames Water Utilities [2009] EWCA Civ 28, [2009] 3 All ER 319.
• Hill v Chief Constable of West Yorshire [1989] AC 53

ARTICLES

• Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] Public Law 289
• F Du Bois, ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 Law Quarterly Review
• D Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’ (2013) 76(2) Modern Law Review 286
• Lady Justice Arden, ‘Human Rights and Civil Wrongs: Tort Law under the Spotlight’ [2010] Public Law 140

1 Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] Public Law 289.

2 Oliphant K, The Liability of Public Authorities in Comparative Perspective (Intersentia, 2016), p130 3 Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] Public Law 289.
4 Giliker P, Tort, 5th edn (Sweet & Maxwell, 2014), p 60

5 Ibid 60
6 F Du Bois, ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 Law Quarterly Review 589

7 Giliker P, Tort, 5th edn (Sweet & Maxwell, 2014), p 85
8 Oliphant K, The Liability of Public Authorities in Comparative Perspective (Intersentia, 2016), p144

9 Sec 6(1) HRA; Oliphant K, The Liability of Public Authorities in Comparative Perspective (Intersentia, 2016), p144
10 Sec 7(1) HRA; Oliphant K, The Liability of Public Authorities in Comparative Perspective (Intersentia, 2016), p144

11 Sec 8(1) HRA; Oliphant K, The Liability of Public Authorities in Comparative Perspective (Intersentia, 2016), p144 -145

12 Clayton, Richard, and Hugh Tomlinson. “The Human Rights Act and its Impact on the Law of Tort.” Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change. Ed. T.T. Arvind and Jenny Steele. London: Hart Publishing, 2013. p 440

13 D v East Berkshire Community NHS Trust [2005] UKHL 23

14 Clayton, Richard, and Hugh Tomlinson. “The Human Rights Act and its Impact on the Law of Tort.” Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change. Ed. T.T. Arvind and Jenny Steele. London: Hart Publishing, 2013. p 440
15 X v Bedfordshire CC [1995] 2 A.C

16 Giliker P, Tort, 5th edn (Sweet & Maxwell, 2014), p 62
17 Lawrence v Pembrokeshire CC [2007] EWCA Civ 446, [2007] 1 WLR 2991.

18 D v East Berkshire Community NHS Trust [2005] UKHL 23
19 Clayton, Richard, and Hugh Tomlinson. “The Human Rights Act and its Impact on the Law of Tort.” Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change. Ed. T.T. Arvind and Jenny Steele. London: Hart Publishing, 2013. p 440

20 Smith v Chief Constable of Surrey Police [2008] UKHL 50, [2009] 1 AC 225

21 Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] Public Law 289, at 304
22 D Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’ (2013) 76(2) Modern Law Review 286, 289;

23 Smith v Chief Constable of Surrey Police [2008] UKHL 50, at [82] 24 Ibid at [136]

25 Jain v Trent Strategic HA [2009] UKHL 4, [2009] 1 AC 853.

26D Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’ (2013) 76(2) Modern Law Review 286, 289

27 D Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’ (2013) 76(2) Modern Law Review 286, 289
28 Desmond v Chief Constable of Nottinghamshire [2011] EWCA Civ 3, [2011] 1 FLR 1361

29 Clayton, Richard, and Hugh Tomlinson. “The Human Rights Act and its Impact on the Law of Tort.” Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change. Ed. T.T. Arvind and Jenny Steele. London: Hart Publishing, 2013. p 442
30 Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2; [2012] 2 A.C 72

31 Giliker P, Tort, 5th edn (Sweet & Maxwell, 2014), p 64 32 Ibid 63

33 Ibid
34 J Wright, Tort Law & Human Rights, 2nd edn (Oxford, Hart Publishing, 2017) 212.

35 Ibid
36 Wainwright [2003] UKHL 53; [2003] 3 W.L.R. 1137.

37 Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] Public Law 289, at 303
38 Lady Justice Arden, ‘Human Rights and Civil Wrongs: Tort Law under the Spotlight’ [2010] Public Law 140.

39 Wainwright [2003] UKHL 53; [2003] 3 W.L.R. 1137 at [34]; Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] Public Law 289, at 303 
40 Ibid

41 Ibid
42 Dobson v Thames Water Utilities [2009] EWCA Civ 28, [2009] 3 All ER 319.

43 Clayton, Richard, and Hugh Tomlinson. “The Human Rights Act and its Impact on the Law of Tort.” Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change. Ed. T.T. Arvind and Jenny Steele. London: Hart Publishing, 2013. p 442

44 Ibid
45 F Du Bois, ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 Law Quarterly Review 589
46 Ibid
47 Ibid
48 Ibid
49 Ibid
50 Ibid

51 F Du Bois, ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 Law Quarterly Review 589
52 Ibid
53 Ibid

54 Ibid
55 Ibid
56 Ibid
57 Ibid
58 Ibid
59 Ibid
60 Ibid
61 Ibid
62 Ibid
63 Ibid
64 Ibid
65 Ibid
66 Section 8(1) HRA

67 F Du Bois, ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 Law Quarterly Review 589
68 Giliker, The Europeanisation of English Tort Law (Hart, 2014) p164
69 Ibid

70 Hill v Chief Constable of West Yorshire [1989] AC 53
71 Giliker, The Europeanisation of English Tort Law (Hart, 2014) p164

72 Ibid 165 73 Ibid 165 74 Ibid 166