Law of Tort Assignment.

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Law of Tort Assignment

(i)        Since the enactment of the Human Rights Act 1998, it seems that some areas of tort law have been affected by the Act to a great extent.  One specific element of tort law that has been affected is ‘duty of care in negligence.’  The tort of negligence may signify ‘whereby persons who by carelessness have caused damage to others and may be held liable to pay compensation.’   However, it is not always the case when ‘careless conduct which causes damage will give rise to an action.’   As this essay will focus on the impact of the Human Rights Act on duty of care in negligence, it is necessary to determine ‘whether the type of loss suffered by the claimant in the particular way in which it occurred can ever be actionable,’  as this may play a great role in the development of the tort of negligence.  Before a duty of care is held to exist, the requirement established in Caparo Industries Plc v Dickman [1990] 1 All ER 568 must be satisfied:

(a)        ‘Foreseeability of the damage;

  1. A sufficiently ‘proximate’ relationship between the parties; and
  2. Even where (a) and (b) are satisfied it must be ‘just and reasonable’ to impose such a duty.’

The Human Rights Act 1998 gives ‘further effect to rights and freedoms guaranteed

under the European Convention on Human Rights.’   The aim of the Human Rights Act is as stated in section 6 (1), ‘courts should not act in a way which is incompatibe with a Convention right, as illustrated in Richard Buxton’s article (p.57).  The Convention has had the greatest effect so far through Article 6 regarding a ‘fair and public hearing, within a reasonable time by an independent and impartial tribunal established by law,’  and also article 3, ‘freedom from torture or inhuman or degrading treatment or punishment.’   By analysing cases throughout this essay, the effect of the Human Rights Act on duty of care in negligence should become clearer.

        In the case of Hill v Chief Constable of West Yorkshire [1989] AC 53, where the ‘mother of the last victim of the Yorkshire Ripper alleged that the police had failed to use reasonable care in apprehending the murder of her daughter,’  and sued the police for this reason.  The Court of Appeal held that while ‘police were under a duty to enforce the law, they did not necessarily become liable for danger from criminals whom they had failed to apprehend.  Foreseeability was not necessarily the test where duty of care existed.’

        The House of Lords held that the ‘police owed no duty of care to individual members of the public who may suffer injury as a result of the failure to identify and apprehend unknown criminals.’   This was partly based on public policy which in this case was that a ‘contrary decision might lead to police discretion being limited and exercised in a defensive frame of mind.’   Lord Keith stated ‘I therefore consider tat Glidewell LJ, in his judgment in the Court of Appeal [1988] QB 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 AC 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court.’

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        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 ...

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This is a very good essay. The level of detail is extraordinary. 5 Stars.