How to Best Assess Public Authority Liability: the Human Rights Act 1998 or the Principles of Tort?

AuthorKristian Foged
S.S.L.R How to Best Assess Pu blic Authorit y Liability Vol.3
How to Best Assess Public Authority Liability: The
Human Rights Act 1998 or the Principles of Tort?
Kristia n Foged
Since th e enactm ent of the Hum an Rights Act 199 8, a tension has man ifested
bet ween the law of torts an d the European Convention for the Protection of
Hu man Righ ts an d Fundam ental Freedoms, particularly with regar ds to the
quest ion of how we assess the 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 an swer which of these is better equipped to address
the liability of public authorities. The article focu ses first on identifying and
analysing the fund ament al disparities of the purposes and th e m ischief that
each system attempts to attach liability to. With a focus primarily on
negligen ce, the key argum ents for each system are th en developed through an
exploration of the cases where a public authority has faced liability for failing
to confer a benefit of som e kind. Th rough analysis of the case law, the ar ticle
submits that the two system s have, at a fundamental level, differ ent reasons
and approach es as to the assessment of liability. As a result, each respective
legal mechanism covers liability for distinct breaches. The ar ticle therefore
concludes that th er e are two separate questions one reflecting each of the
two approaches that m ust be employed by the cour ts in order to fully
address th e liability of public aut horities; whether there has been a breach of
the du ty and wh ether a rig ht has been breach ed.
s lon g as hum an rights law rem ained in st itution ally separ at ed by the
jur isdiction al monopoly of Strasbourg court, these rou tes to liability
ran h appily in parallel. Their joinder came into question only once the
enactm ent of the HRA ensured that th e same, domestic, courts would become
involved in bot h.’1 As Du Bois illustrates, Sect ion 6(1) of the Hu man Rights Act
1998 2 has given pract itioners a new set of tools to work with when dealin g
with the liability of public bod ies. However, the com mon law has its own
approach to cases of such nature, br inging to light the question of whether ‘the
Hu man Righ ts Act 1998 provides a far better solution to address the liability
of public auth or ities t han the rigid adherence to general tort prin ciples could
ever achieve?
1 Francois Du Bois, ‘Human rights and the tort liability of public authorities’ [2011] L.Q.R 589, 607
2 Hereon refered to as the HRA

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