How to Best Assess Public Authority Liability: the Human Rights Act 1998 or the Principles of Tort?
| Author | Kristian Foged |
| Pages | 73-81 |
S.S.L.R How to Best Assess Pu blic Authorit y Liability Vol.3
73
How to Best Assess Public Authority Liability:The
Human Rights Act 1998 or the Principles of Tort?
Kristia n Foged
Since the enactm ent of the Human Rights Act 1998, a tension has manifested
between the law of torts and the European Convention for the Protection of
Human Rights and Fundamental Freedoms, particularly with regards to the
question of how we assessthe liability of and hold to account public
auth orities. The following art icle assesses t he merits and shortcom ings of bot h
approaches an d seeks to answer which of these is better equipped to address
the liability of public authorities. The article focuses first on identifying and
analysing the fundamental disparities of the purposes and the mischief that
each system attempts to attach liability to. With a focus primarily on
negligen ce, the key argum ents for each system are then developed through an
exploration of the cases where a public authority has faced liability for failing
to confer a benefit of some kind. Through analysis of the case law, the article
submits that the two systems have, at a fundamental level, different reasons
and approaches as to the assessment of liability. As a result, each respective
legal mechanism covers liability for distinct breaches. The article therefore
concludes that there are two separate questions–one reflecting each of the
two approaches – that must be employed by the courts in order to fully
address the liability of public authorities; whether there has been a breachof
thedutyandwh ether a rig hthas been breach ed.
Introduction
s long as human rights law remained institutionally separated by the
jurisdictionalmonopoly of Strasbourg court, these routes to liability
ran h appily in parallel. Their joinder came into question only once the
enactm ent of the HRA ensured that the same, domestic, courts would become
involved in bot h.’1As Du Bois illustrates, Sect ion 6(1) of the Hu man Rights Act
19982has given practitioners a new set of tools to work with when dealing
with the liability of public bodies. However, the common law has its own
approach to cases of such nature, br inging to light the question of whether ‘the
Human Rights Act 1998 provides a far better solution to address the liability
of public authorities than the rigid adherence to general tort principles could
ever achieve?’
1Francois Du Bois, ‘Human rights and the tort liability of public authorities’ [2011] L.Q.R 589, 607
2Hereon refered to as the HRA
‘A
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