Law of Tort Assignment.

        The case of Osman v Ferguson [1993] 4 All ER 344 is very much similar to Hill v Chief Constable of West Yorkshire. The Court of appeal decided that there was ‘proximity of relationship, but as a matter of policy it was decided that the police were immune from suit in negligence.’

        ‘The European Court of Human Rights (EctHR) case of Osman v United Kingdom [1998] 5 BHRC 293, arose from an application of the rule established in Hill v Chief Constable of West Yorkshire.’   In this case, a schoolteacher developed an obsession for a pupil, Ahmet Osman, which led to continuous harassment to the pupil and his family for a year, which resulted in the unfortunate death of Ahmet’s father, and injury to Ahmet himself.  The Court of Appeal, namely McCowan and Simon Brown LJJ, held that ‘there existed a very close degree of proximity amounting to a special relationship.’   The Court held that ‘in light of previous authorities, in particular Hill v Chief Constable of West Yorkshire, no action could lie against the police in negligence on the investigation and suppression of crime on the grounds that public policy required an immunity from suit.’   However, as the Court of Appeal refused leave to appeal to the House of Lords, the claimants applied to Strasbourg ‘alleging violations by the United Kingdom of Articles 2, 6 and 8 of the Convention.’   It was held that there had been no violation of Articles 2 or 3 of the Convention.  However the court did find a violation of Article 6 (the right to a fair trial), because ‘it struck out the claimant’s claim against police on policy grounds before a hearing on the facts, effectively granting the police a ‘blanket immunity’ against negligence claims where the police have failed to prevent a third party injuring the claimant.’ 18

        There seemed to be critical reactions in relation to the decision made in Osman v UK, ‘Lord Browne-Wilkinson was clearly unhappy with the Osman decision, which he confessed he found difficult to understand…Lord Steyn and Lord Nolan agreed with his speech.’ 19  Other critical comments regarding the EctHR’s reasoning in Osman, was that it was suggested that the ‘court had misconceived the rules for determining duties of care in English Law, and others arguing that an essentially procedural protection had been transformed into a power to challenge the scope of substantive rights within contracting states, right which were not protected independently under the Convention.’ 20  Although the criticism here is ‘overruled by Z v United Kingdom [2001] 2 FLR 612.’ 21

        Osman v UK influenced the decision of Barrett v Enfield London Borough Council [1999] 3 WLR 79.  In this case, ‘allegations of negligence were made against the defendants about the treatment of a child after he had been taken into care.  The House of lord held that it was not appropriate to strike out the claim as it was not just and reasonable to impose a duty of care without hearing the evidence.’ 22  Therefore the effect of Osman is that in future cases, ‘it will no longer be permissible simply to have action struck out on policy grounds as this would contravene Article 6 of the European Convention.’ 23  However, there is an objection to the Article 6 view in that ‘everyone should get their day in court and it will become much harder for public authorities to settle actions and reduce their costs,’ 24 although there is a ‘refrain of English negligence law that recognition of a duty of care will open the floodgates of litigation.’ 25

        The case of Z v United Kingdom ‘arose out of the House of lords’ decision in

X v Bedfordhsire CC [1995] 2 AC 633, in that it was not fair, just and reasonable to admit a duty of care.’ 26  In Z v UK, the ‘European Court of human rights acknowledged that its decision in Osman v UK had proceeded on a misunderstanding of the English tort of negligence and the procedural rules which permit a party to apply to the court to strike out a claim on the basis that it discloses no reasonable cause of action.’ 27  It seemed that their ‘claim in negligence failed on the so-called third limb of the test in Caparo Industries Plc v Dickman i.e. that it should be fair, just and reasonable to impose a duty of care.’ 28  It was also held that the UK was in ‘breach of Article 3 which prohibits torture or inhuman or degrading treatment, in that the welfare system had failed to protect the children from serious, long-term neglect and abuse.’ 29  ‘The Court also found violation of Article 13,’ 30 in that a remedy for the breach of Article 3 was not provided, although it seems that since the enactment of the Human Rights Act, a remedy has been provided for this.

        It was also held in Z v UK that there had been no violation of Article 6.  ‘In TP and KM v United Kingdom [2001] 2 F.C.R 289, a judgment handed down on the same day as that in Z v UK, the Court reached a similar result on Article 6.’ 31  ‘The Court observes, firstly, that the claimants were not prevented in any practical manner from bringing their claims before the domestic courts.’ 32  This statement proves that a breach of Article 6 did not exist as opposed to the Osman case.

        Having examined different cases in relation to determining whether the Human Rights Act 1998 has had a considerable influence on the development of the duty of care in negligence, it is evident that the Act has had an impact, especially since the case of Osman v UK.  The effect of Osman is that it is now possible to bring a claim against public authorities, ‘…after Osman, English law has made it much easier for many persons to sue public authorities in negligence.’ 33  Also, as mentioned earlier, ‘it will no longer be permissible simply to have the action struck out on policy grounds as this would contravene article 6 of the European Convention.’ 34

        Another impact of the Human Rights Act is that ‘an effective remedy is now provided by the HRA 1998, under which the courts have gained a power to grant damages as a remedy for the breach of a Convention right by a public authority.’ 35  Section 8 (1) of the HRA 1998 ‘confers apparently wide powers upon the court to grant remedies for a breach of section 6 (1) and provides that:

“In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.” 36

Lastly, to conclude, it is clear that the Human Rights Act 1998 has had a significant effect on the duty of care in negligence, principally, as the cases of Osman v UK and Z v UK indicate.  The Human Rights Act will no doubt continue to have an effect on the tort of negligence in future cases.

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