Negligence and Human Rights Law: The Case for Separate Development
| Published date | 01 March 2013 |
| Author | Donal Nolan |
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12013 |
Negligence and Human Rights Law: The Case for
Separate Development
Donal Nolan*
A number of judges and academics have argued in favour of the convergence of negligence law
with human rights law. By contrast, the thesis of this article is that the two legal orders should
develop independently, so that for the most part the law of negligence ought not to be affected
by human rights considerations. It is argued that the case for convergence is based on two false
assumptions, namely that human rights law and negligence law perform similar functions within
our legal order and that the norms of human rights law are more fundamental than the norms
encapsulated in negligence law. It is also argued that convergence would undermine the coher-
ence of negligence law. Ultimately, the case for separate development rests on the desirability
of recognising public law and private law as autonomous normative systems with their own
distinctive rationales, concepts and core principles.
INTRODUCTION
More than a decade after the Human Rights Act 1998 (HRA) came into force,
the relationship between human rights law and the law of tort continues to pose
difficult questions for academics and judges. Early on, academic discussion of that
relationship was dominated by general accounts of the likely ‘horizontal effect’ of
the HRA, but ‘developments have been subtler than forecast’,1and the working
through of the relationship in the courts has made it clear that for the most part
the judges are not interested in adopting any general position on that question,
preferring to respond in a more specific way as particular issues have been
thrown up.2
*Porjes Foundation Fellow and Tutor in Law, Worcester College, University of Oxford. A version of
this article was presented to the Torts Subject Section at the Society of Legal Scholars conference at The
University of Cambridge in September 2011. I am grateful to the participants in that session for their
comments, and to Matthew Dyson, Timothy Endicott, Jonathan Morgan and the two MLR referees
for their comments on an earlier draft. The usual caveat applies.
1 Lady Justice Arden, ‘Human Rights and Civil Wrongs: Tort Law under the Spotlight’ [2010] PL
140, 153.
2ibid, 142 (‘the debate on horizontality . . . has ceased to be important due to the way the law has
actually developed’). See also G. Phillipson and A. Williams, ‘Horizontal Effect and the Consti-
tutional Constraint’ (2011) 74 MLR 878, 878 (lamenting the fact that ‘the judges have failed to
reach a consensus on the nature and extent of the courts’ duty to give horizontal effect’ to
Convention rights) and T. Hickman, Public Law After the Human Rights Act (Oxford: Hart
Publishing, 2010) 56 (‘no consistent judicial approach’ to the relationship between the HRA and
the common law). The Dutch courts have similarly refused to make any general pronouncement
on the horizontal effect issue, preferring to take a more context-specific approach whereby the
interaction between constitutional rights and private law occurs ‘spontaneously’, and without ‘an
explicit obligation on the part of the courts’ (O. O. Cherednychenko, ‘Fundamental Rights and
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 286–318
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Furthermore, setting aside the logical difficulties with the ‘surprisingly popu-
lar’3argument that the HRA imposes a general obligation on judges to develop
the common law of tort in such a way as to provide remedies for violations of
the rights enshrined in the European Convention on Human Rights,4the fact
that for the most part the judiciary seem simply to have ignored the possibility
that they are so obliged would suggest that continued academic deliberation on
the issue is unlikely to alter the course of the law’s development.
If in practice the judiciary feel under no general obligation to adapt the law of
tort in particular ways in response to human rights considerations, and prefer not
to construct general theories governing the relationship between the HRA and
tort law, then a more fruitful direction for academic enquiry may be to consider
how the courts should respond to specific interactions between the HRA and
tort law as and when they arise. A great deal of such work has already been done
in the privacy and defamation contexts (the areas of tort law in which the HRA
has had the most influence so far), and in a recent essay I explored the complex
inter-relationship between the HRA and the tort of private nuisance.5In this
article, I turn the spotlight on the relationship between the HRA and negligence
law. My thesis is a simple one, namely that liability in negligence and under the
HRA should develop independently of each other, so that for the most part the
substantive law of negligence ought not to be affected by human rights law.
As we shall see, although this argument for ‘separate development’ goes
against the grain of much of the existing academic analysis, it has for the most
part been accepted by the judiciary.6However, the judges have largely failed to
articulate any convincing justification for it. By contrast, I argue (1) that the
argument for the convergence of negligence and human rights law is based on
two false assumptions, namely that negligence law and human rights law
perform similar functions within our legal system and that the norms of human
rights law are somehow more fundamental than the norms encapsulated in
negligence law; and (2) that separate development is necessary to preserve the
coherence of negligence law, since attempts to harmonise it with the Con-
vention legal order would weaken its structural underpinnings and cut across its
core principles.
A number of preliminary points should be made about the scope and focus of
the article. The first is that my concern is with human rights law. There may well
be close connections between some ethical or political conceptions of human
rights and the rights instantiated in negligence law, but my present concern is
Private Law: A Relationship of Subordination or Complementarity?’ (2007) 3 Utrecht L Rev 1,
13).
3 F. du Bois, ‘Social Purposes, Fundamental Rights and the Judicial Development of Private Law’
in D. Nolan and A. Robertson (eds), Rights and Private Law (Oxford: Hart Publishing, 2012) 90.
4 Some of which are helpfully explored in R. Bagshaw, ‘Tort Design and Human Rights Thinking’
in D. Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (Cambridge: CUP,
2011) 117–128. See also du Bois, ibid, 90–91.
5 D. Nolan, ‘Nuisance’ in Hoffman, ibid.
6 ‘There is a developing understanding that remedies under the [HRA] are appropriate to the
purposes of the statute as a whole, and that there is no need to introduce major changes into tort
law in order to protect the same Convention rights through different means’ (M. A. Jones (ed),
Clerk and Lindsell on Torts (London: Sweet & Maxwell, 20th ed, 2010) para 14–92).
Donal Nolan
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 287
(2013) 76(2) MLR 286–318
with the legal conception of human rights as rights individuals have against the
state to certain goods,7a conception which locates human rights law firmly
within the domain of public law (including public international law).8The
second point is that the article is solely concerned with the relationship between
human rights law and the common law of negligence. I would hope and expect
that the argument for separate development in the negligence context would
have implications for the relationship between human rights law and other
aspects of tort law, but the inter-relationship between human rights law and tort
law has proven to be very context-sensitive, and it would therefore be a mistake
simply to assume that conclusions drawn in one area will apply with equal force
in others. Third, my discussion is limited to what might be termed the ‘sub-
stantive’ law of negligence. Earlier considerations of the relationship between
human rights law and English negligence law were dominated by the contro-
versial decision of the European Court of Human Rights in Osman vUnited
Kingdom9(Osman) that the striking out of a negligence claim on the grounds that
no duty of care was owed violated the claimant’s right of access to a court under
article 6 of the Convention. However, the Strasbourg Court later backtracked in
ZvUnited Kingdom10 (Z) and what might in retrospect be referred to as the
‘Osman debacle’ appears to have had little lasting impact on the development of
negligence law,11 and has in any case been fully explored by commentators.12
And finally, I have chosen not to engage in this article with the broader
European debate on the ‘constitutionalisation’ of private law13 because (like the
domestic horizontal effect debate) this shows no sign of actually affecting the
law’s development, and because in any case it is questionable to what extent
the Convention rights protected by the HRA are ‘constitutional rights’ in the
sense in which that term is used in those debates.14 It should however be noted
that the positions taken in those debates have generally been more subtle than the
argument for convergence of negligence and human rights law under scrutiny
here.
7 R. Stevens, Torts and Rights (Oxford: OUP, 2007) 331.
8 See further text to nn 44–50 below.
9 [1999] 1 FLR 193.
10 [2001] 2 FLR 6.
11 An attempt to ‘resurrect’ Osman to challenge the dismissal of negligence claims by way of a
preliminary finding that no duty of care was owed failed in the Court of Appeal in JD vEast
Berkshire Community Health NHS Trust [2003] EWCA Civ 1151, [2004] QB 558 (JD), and the
point was not even taken on appeal to the House of Lords ([2005] UKHL 23, [2005] 2 AC 273).
See also Brooks vMetropolitan Police Commissioner [2005] UKHL 24, [2005] 1 WLR 1495 and Smith
vChief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225, in both of which the House
of Lords upheld decisions to strike out negligence claims on no-duty grounds.
12 See, eg, C. Gearty, ‘Osman Unravels’ (2002) 65 MLR 87; C. Booth and D. Squires, The
Negligence Liability of Public Authorities (Oxford: OUP, 2006) paras 3.65–3.78.
13 See generally H. Collins, ‘The Constitutionalisation of European Private Law as a Path to Social
Justice’ in H-W. Micklitz (ed), The Many Concepts of Social Justice in European Private Law
(Cheltenham: Edward Elgar, 2011) 135–141.
14 The Law Commission has, for example, denied that the HRA creates ‘constitutional rights’: Law
Commission, Damages Under the Human Rights Act 1998 (Law Com No 266, 2000) para 4.20. On
the distinction between human rights and constitutional rights, see J. Rawls, The Law of Peoples
(Cambridge, Mass: Harvard UP, 1999) 79.
Negligence and Human Rights Law
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
288 (2013) 76(2) MLR 286–318
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